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. Kirby P Once again the Court must grapple with the provisions of ss57 and 58 of the Limitation Act 1969 (the Act). The laments of Lord Denning and Salmon LJ upon its English progenitor (as well as its manifest opaqueness) did not deflect the New South Wales Law Reform Commission from copying it. If there are provisions in the State statute book calling out for "plain English" treatment, these must be at the top of the list. An old injury to an assembly worker A working woman of modest education and means was engaged by the respondent for many years in process work on an assembly line. When, after a year, she started to suffer pain from repetitive strain injury, and started to lose time from work, she saw solicitors about her entitlement to benefits under the Workers' Compensation Act 1926. But she was paid compensation without an award of the then Workers' Compensation Commission being necessary. It may be reasonably inferred that her consultations with her lawyers were not intensive at that stage. Certainly, nobody seems to have paid attention at that time to the possibility of a damages action against the employer for negligence in a compensation claim then of very modest dimensions, paid without contest, this would have been reasonable. 2 UNREPORTED JUDGMENTS The possibility such an action only came to a head in October 1983. The appellant was then propelled into again seeing her solicitors by the prospect of dismissal, because of her employer's policy to terminate workers with an accumulated absence on compensation of 52 weeks. When she saw her solicitors in October 1983, the appellant had been working for the respondent for more than ten years. It was more than nine years since she had first noticed symptoms. She was aware that desultory efforts had been made to introduce a system of rotating workers to provide relief against repetitive work. She was an unpaid union representative of her fellow-workers. But, she says (and there is no cause to disbelieve her), that she was unaware of a system which could have been introduced by her employer to remove, or reduce, the risk of repetitive strain injury inherent in the employment upon which she was engaged. Expert evidence now available to her case provides a basis upon which a jury could conclude that, by 1973, practical ways of preventing repetitive strain injuries were publicly known and available to employers such as the respondent. It is trite to say that it is the employer's duty to devise and institute a safe system of work. It is not the duty of an employee to do so. The locus of the duty and the superior resources and means of information available to the employer impose upon it, not the worker, the institution and maintenance of a safe system of work. See HH Glass, MH McHugh, The Liability of Employers in Damages for Personal Injury, Law Book Co, 1966, 37 and cases there cited. Within a year of going to her solicitors, and learning that in 1973 and thereafter there were alternative methods of work which could have been adopted by her employer and which would have obviated or reduced the risk of her injury, the appellant had commenced her damages action by a statement of claim. To extend the period of exposure to employment injuries, in respect of which she could seek to recover damages, she sought an extension of the limitation period pursuant to the provisions of s57 and s58 of the Act. Master Greenwood provided the extension. He extended to 16 January 1985 the limitation period in respect of causes of action sued upon by the appellant in the proceedings commenced by her statement of claim of 15 October 1984. The respondent appealed. Allen J allowed the appeal. He set aside the orders of the Master and dismissed the summons for the extension of the limitation period. It was in this way that the further appeal by the appellant came to this Court by leave. See Dousi v Colgate Palmolive Limited (1987) 9 NSWLR 374. I will not obscure this judgment with a repetition of the statutory provisions which are set out in the judgment of Meagher JA. As my opinion is a minority one, it will be sufficient for me to outline the way in which I arrive at a conclusion different from the majority. The starting point is a consideration of the purpose which Parliament sought to achieve by the enactment of s57 and s58 of the Act. Clearly this was to provide relief from a general limitation period which would otherwise apply in injury cases of this kind. The onus for securing that relief is upon the applicant who seeks to invoke the exceptional provisions of the sections. However infelicitous, the complicated language of the section was adopted in the attempt to resolve the tension between the policies of finality of litigation (which the limitation periods secure) and of justice to an injured person ignorant of material facts (which the facility for extension protects). Considering the "circumstances" of the claimant It is important next to draw attention to the qualification contained in s57(1)(c) of the Act. In judging whether or not it was reasonable for a person not to have sued within the ordinary limitation period, the decision-maker must take into URJ DOUSI v COLGATE PALMOLIVE PTY LTD (NO 2) (Kirby P) 3 account the "circumstances" of that person. Picking up what Hope JA emphasised in Royal North Shore Hospital v Henderson (1986) 7 NSWLR 288, 287 (and what Mahoney JA said in the same case, ibid 300) I added a few observations of my own in Brunton v D O'Bryan and Co Pty Limited and Anor, Court of Appeal, unreported, 4 August 1988; (1988) NSWJB 126: "Tt may seem surprising to lawyers who, by their training and experience are sensitive to legal rights and conscious of the need for speed in asserting them, that a reasonable person knowledgeable about physiological pathology, would not promptly seek legal as well as medical advice. It was not so surprising to Parliament which may be taken to be aware of the multitude of reasons which can lead to delay in self-protection on the part of ordinary people unversed in the law and its requirements. Such reasons can include ignorance of rights, fear of the law, distraction by other problems, lack of access to advisers, want of funds to pay for advice or a limited capacity to venture upon litigation which is costly and is considered risky. That is why the Act requires a court, considering a case such as the present, to take into account the "circumstances" of the injured person. Different degrees of self-insight, different reactions to self-protection, varying initiatives to secure advice, different availability of advice and differing degrees of resolution in pursuing it are thus contemplated by this important qualification." The principle in Henderson is binding on this Court. It has been applied in several cases. Nothing said in the High Court of Australia in Do Carmo v Ford Excavations Pty Limited (1983-84) 154 CLR 234 is inconsistent with it. It is true, as Hope JA observes in this case, that the reference in s57(1)(e)(ii) to the taking of "all reasonable steps" to ascertain material facts imports an element of objectivity (so that "however one construes the provision or plays with the language the need for reasonableness cannot be removed"). However, that element is immediately referred back to the circumstances of the individual claimant. This occurs because of the reference to the "circumstances" of that claimant in s57(1)(c). It is not what is "reasonable" for the ordinary person to do which is in issue. Nor is it the knowledge, conduct and response of such a person. What is in issue is, relevantly, whether a person whose means of knowledge was that of the claimant, taking into account his or her circumstances, ought in his or her own interests to have brought an action on the cause of action. Now, in the present case, there was no challenge to the conclusion that the appellant was a truthful witness. Nor was it challenged that she was telling the truth when she said that she did not have actual knowledge of the relevant material fact of a decisive character upon which she relied. This was that there were safeguards and alternative work systems which were available to her employer as long ago as 1973. The issue in the appeal therefore became, first, whether that relevant fact was within her "means of knowledge" under s57(1)(e) of the Act. In Do Carmo, the High Court of Australia has divided upon whether that paragraph requires a subjective or an objective test to be applied. Because of the purpose of the Act which is to look at the question whether an extension to the claimant is in the circumstances of the claimant justifiable, it seems to me that the test may be categorized as a subjective one. This was the view taken by Dawson J (ibid 258-9). The view taken by Deane J appears to have been that an "objective" test was to be applied. The majority was this Court favours that approach. But in Do Carmo in the High Court Wilson and Deane JJ were for dismissal of the appeal. However, by their orders, Murphy ACJ, Brennan and Dawson JJ allowed the appeal. Accordingly, in formal terms, the judgment of 4 UNREPORTED JUDGMENTS Deane J is a dissenting judgment. In establishing the ratio decidendi of the High Court's decision, binding on this Court, the judgment of Deane J is therefore disregarded, although respectful attention must be paid to it in considering the development of the law upon matters which were not in issue in Do Carmo. Dickinson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177, 188. The judgment of Dawson J (with which Brennan J agreed) is part of the majority which resulted in the order of the High Court. It is therefore from that judgment, not the judgment of Deane J, that the binding rule of the case is to be ascertained by us. See Federation Insurance Limited v Wasson (1987) 163 CLR 303, 314. It was not within her means of knowledge The majority is of the opinion that the relevant fact was within the appellant's means of knowledge. They point to her knowledge of her physical condition, her knowledge of imperfect and inadequate changes in work practices despite representations, the long period of her employment with the respondent, her engagement as a union officer and the fact that she had previously consulted her solicitors about workers' compensation entitlements. Against these considerations must be weighed the following facts: (1) The appellant, when she consulted her solicitors in 1974, was concerned only about her workers' compensation entitlements. She was not then advised of her entitlement to sue at common law or of the fact that such an entitlement arose because of the failure of the employer to adopt available alternative systems of work. These omissions are scarcely surprising. The incapacity at the time was relatively short. Compensation was paid without an award. The case was precisely the kind of case for which workers' compensation is provided. At that time it had none of the hallmarks of a common law damages action; (2) The claimant did not again consult with her solicitors until 1983. She did so then because she faced dismissal under the employer's policy previously referred to. It is suggested that she had sufficient information to propel her to go to the solicitors earlier. But this makes an assumption that the appellant was aware of the very fact of which she states she was ignorant, namely that there were alternative systems of work which thereby rendered her employer's conduct of its operations negligent and actionable. Absent that knowledge, her failure earlier to consult the solicitors is entirely explicable. When she did so, she received advice and commenced proceedings within the time allowed by law; (3) Although it is true that the claimant raises the alternative work procedures with her supervisors in her capacity as an officer of the union, as found by Allen J those superiors "could not suggest methods by which these problems could be overcome or alleviated". Their response would therefore simply have reinforced the opinion of the appellant that there was nothing that could be done in the nature of the employer's operations. And if this were so, had she turned her mind to it, she would have concluded that there was no claim in negligence to suggest that she should require her to seek legal advice and commence an action; (at page 9) (4) It is erroneous to require a person in the position of the appellant to perceive that the respondent's inaction was due "not to its inability to do something but its unwillingness to stir itself', as Allen J suggested. That approach, in my opinion, erroneously elevates matters which are within the claimant's "means of knowledge" into a positive duty of enquiry and research into the employer's system and scrutiny of the employer's explanations given concerning the system; URJ DOUSI v COLGATE PALMOLIVE PTY LTD (NO 2) (Kirby P) 5 (5) Far from supporting a charge of "inactivity" on the part of the appellant, the fact that the respondent's foreman "could not come up with answers" and that the "problem called for intervention at management level" helped to explain, in the practical environment of an assembly line factory in which the appellant worked, her resigned acceptance that nothing would be done because nothing could be done; and (6) During the years that she continued to work for the respondent, the appellant suffered difficulties and intermittent time off work. These would have been a further reason why her failure to secure earlier advice was reasonable. She was concentrating on holding down her job. It was only with the grim prospect of losing it loomed on the horizon, that she went to see lawyers. Doing so was then a matter of survival because of the prospect of losing her income. What workers and employers may "know" I realise that it is difficult for some people to understand the psychology of inactivity on the part of a person such as the appellant. With knowledge, access to advice and funds (and armed with a little retrospective wisdom) it is easy to say that acting reasonably she ought earlier to have sought legal advice. However, in my view, a woman of her background, education, experience and employment who had no special knowledge of alternative systems of work available to her employer is not to be judged to have failed to have taken "all reasonable steps to ascertain" the existence of an alternative system for work and hence of a viable cause of action. If one is ignorant of the object for which one should be searching - or even of the fact that one should be searching at all - the default in seeing that object is adequately explained. In the circumstances of this appellant, I believe that the steps she had taken relevant to the discovery of applicable facts necessary to constitute a cause of action were, in her circumstances, "reasonable". The error which is perpetuated by upholding the decision of Allen J is, in my respectful view, that it translates the requirement of s57(1)(e) of the Act into an affirmative duty on the part of an employee, if it be necessary for the ascertainment of a material fact, to undertake investigative enquiry into his or her employer's work systems for the purpose of identifying the nature of any defects or shortcomings and ascertaining the availability of improvements or alternatives. But this has never been the duty of the employee at common law. The duty to institute a safe system of work is a personal duty of the employer. Furthermore, this construction of the Act perpetuates expectations of an ordinary working person - even one with some voluntary links with her union - which are, in my opinion, unrealistic. It defeats the achievement of the objects of which the extension provisions of the Act were enacted. It was a material fact of a decisive character It remains only to say that the respondent by notice of contention argued that the existence of an alternative system of work was not a "primary fact" and that it was therefore not a "material fact relating to a cause of action" which was "of a decisive character" within the meaning of s57(1)(c) of the Act. The respondent urged the Court to follow in this regard the approach of Deane J in Do Carmo (above) at 251. That approach with which Wilson J appears to have agreed in a separate judgment, posits the still further distinction between "primary" and "secondary" facts so that the "material facts" to which s57(1)(b) of the Act refers are only "primary" facts. 6 UNREPORTED JUDGMENTS Dawson J (with whom Brennan J agreed) disputed the utility of this further distinction. Murphy ACJ did not agree with Deane J. His approach was different. However, he finished his judgment with these words (at 239): "A case such as the present, where legal advice was apparently sought but correct guidance was not provided by his former legal advisers, highlights the need to interpret the Act in this way, if its remedial intention is to be fully implemented. The approach taken by Murphy ACJ to the remedial purposes of the section is clearly correct. A purposive construction is the modern way in which to approach the interpretation of all legislation. It is particularly appropriate in legislation such as this which has a beneficial objective and which provides relief against the descent of a limitation bar. I do not consider that this Court is bound by the approach of Deane J. It was not accepted by the majority of the High Court in Do Carmo. It was disapproved by two of their Honours in specific terms. It adds a still further refinement to legislation which is already too complex. In this regard I agree with the opinion expressed by Hope JA that the distinction between so-called "primary" and *secondary" facts is not an appropriate one." I repeat what I have said above concerning the ascertainment of the binding rule of the High Court in Do Carmo. See also Field v Field, Court of Appeal, unreported, 21 October, 1981. Accordingly, I do not believe that the respondent's point in its notice of contention should succeed. In my opinion, knowledge of the existence of an alternative system of work was a "material fact relating to a cause of action" which was "of a decisive character" within s57(1)(c). The appeal is not resolved by reference to that paragraph but to s 57(1)(e). Upon the true construction of that paragraph, I would reverse Allen J and restore the order of the Master. Orders The following orders should be made: 1. Appeal allowed; 2. Order of Allen J, set aside; 3. In lieu thereof, order that the appeal from the order of Master Greenwood dated 10 December 1985 be dismissed with costs. 4. The respondent to pay the costs of the appeal (including of the summons for leave to appeal) and to have, if so qualified, in respect thereof a certificate under the Suitors' Fund Act 1951. Hope JA Although not dealt with by the Master or by Allen J, the satisfaction by the plaintiff of the test provided in s57(1)(c) was raised in this Court. It was submitted that the facts which were claimed not to be within the plaintiff's means of knowledge were not material facts relating to a cause of action of a decisive character within the meaning of that paragraph. As Meagher JA has shown, there is a difference of opinion in the High Court appearing in the judgments in Do Carmo v Ford Excavations Pty Limited (1983-84) 154 CLR 234, as to the construction of the paragraph. On one view a distinction is to be made between primary facts and secondary facts and the facts referred to in the paragraph are primary facts. On the other view the Act does not refer to such a distinction and there is no basis for using it in the application of the provision. I propose to deal with the appeal in the same way as it was dealt with by the Master and Allen J, that is, to deal with it by reference to the provisions of s57(1)(e) on the assumption that the plaintiff would otherwise satisfy the test in s57(1)(c). Having regard to my conclusion in that regard, it becomes unnecessary URJ DOUSI v COLGATE PALMOLIVE PTY LTD (NO 2) (Hope JA) 7 to consider the construction of s 57(1)(c). However I should say that I am not presently satisfied that the distinction which has been made between primary and secondary facts is an appropriate one. Moreover there would seem to be another problem in the present case in relation to par (c). It is true that the provision contemplates a person with knowledge of facts getting expert advice upon them. However, as I understand the provision, the contemplated advice would be advice "on those facts", that is, on the known facts, and not, it would seem, the imparting to the plaintiff of knowledge of another fact. If, on seeking advice on facts A, B and C, the plaintiff, with or without other advice, is told about fact D, previously unknown to him, and proving fact D is essential to proving the cause of action, that fact would not previously have been within the plaintiff's means of knowledge unless he had not taken before that time, as provided in par (e)(ii), all reasonable steps to ascertain that fact. A fact of which the plaintiff was unaware in the present case until, having sought legal advice, she learnt about it, was that at all material times there were work practices which, if adopted by the defendant, would have protected its workers, including the plaintiff, from repetitive strain injury. Whether the employer (assuming it did not know of the fact) should have been aware of this fact, and if so whether it had been negligent, were no doubt matters for expert advice, but the definition contemplates a knowledge of the relevant facts before advice upon them is taken, and not a taking of advice in order to be told of facts, or, on any view, of facts of this kind. However, since it is not necessary to do so, I express no concluded view on these matters. $57(1)(e) provides: "57.(1) For the purposes of this Division - (e) a fact is not within the means of knowledge of a person at a particular time if, but only if (i) he does not, at that time, know the fact; and (ii) in so far as the fact is capable of being ascertained by him, he has, before that time, taken all reasonable steps to ascertain the fact;" There has been a difference of opinion as to whether this paragraph imposes in sub-par (ii) an objective or subjective test. Meagher JA has referred to decisions dealing with the matter. Once the word "reasonable" is used to describe the nature of the steps which are to be taken, it is difficult to contemplate a wholly subjective approach to the question. The sub-paragraph assumes that the plaintiff does not know the fact. It further assumes that the fact is capable of being ascertained by him. Both these requirements are in my opinion satisfied in the present case. The remaining question is whether the plaintiff has taken all reasonable steps to ascertain the fact. The word "reasonable" cannot mean simply "steps which the plaintiff considers reasonable" or "other than steps which the plaintiff had a reason not to take". As it seems to me the expression "all reasonable steps" must mean either all steps which a hypothetical person in the position of the plaintiff ought reasonably to have taken, or all steps which the plaintiff, in the circumstances in which he or she was placed at the relevant time, ought reasonably to have taken. Perhaps another way of stating the first of these alternatives is that the expression means all steps that a reasonable person would have taken. However one construes the provision or plays with the language, the need for reasonableness cannot be removed. 8 UNREPORTED JUDGMENTS Whether one takes a hypothetical person in the position of the plaintiff or the plaintiff herself in the circumstances in which she found herself - and I consider the latter to be the correct approach - I agree with the conclusion of Allen J that she had not taken all reasonable steps to ascertain the fact before the time to which the Act refers. Her failure to take any steps did not become reasonable because there was no economic or other pressure upon her to take steps until she was told that she might shortly be dismissed. Indeed, the fact that she took legal advice then justifies, in the circumstances of the case, an inference that she appreciated that she might have some right to sue her employer apart from her right to recover workers' compensation. She cannot say that the fact was not within her means of knowledge long before the commencement of the time relevant to the making of her application. Hence her application was properly dismissed. Meagher JA The order under appeal was an order made by Allen J refusing leave for an extension of time under s58 of the Limitation Act 1969. That order reversed an order made by the Master extending time under that Section. The appellant is Janice Jean Dousi. The facts of the matter are not in dispute, and were not in dispute either before the Master or Allen J. The plaintiff commenced employment with the defendant on or about February 1973 and remained in such employment until after the decision now appealed from. From the commencement of her employment until June 1984 she so commenced on assembly lines in work which involved the repetitive use of the upper limbs. In June 1984 she was transferred to light duties. Within a few months of commencing her employment she developed pain in her shoulders whereupon cortisone injections were required. Her condition did not wholly abate and commencing from the beginning of February 1974 she had substantial absences from work because of the condition of her shoulders. In about 1979 she developed disability in her wrist and elbow and both limbs. She was aware, as was obvious, that the repetitive strain involved in the nature of her employment was the material cause of her disability. As early as 1974 she made an application to the Workers Compensation Commission for an award in respect of her disability and ensuing incapacity and she was paid benefits by the defendant without any formal award being made. In order to make her application she attended upon her solicitors. She did not thereafter seek any legal advice until she saw the same firm of solicitors in October 1983. The reason why she saw them in October 1983 was because on that day she had been advised that it was her employer's policy to terminate the employment of any employee when the total of the period of absences exceeded 52 weeks. She was approaching that total. The result of her interview was the filing of the Statement of Claim on 15 October 1984 and the bringing on her behalf of this application for extension of the limitation period. It is clear enough that during the eleven years in which she had been employed she was suffering from her complaints continually and the work records of her employer illustrate the frequency with which she complained about the matter. It should be added that whilst she had left school at an early age she, as her evidence given before the Master indicates, is a woman of some spirit and intelligence. She knew that the foreman of her employers endeavoured to change the system under which she was working in about 1978 by introducing a measure of rotation of work. She appreciated that this was done by the foreman and not by the upper management of her employers. She appreciated that the foreman's URJ DOUSI v COLGATE PALMOLIVE PTY LTD (NO 2) (Meagher JA) 9 efforts were half hearted and ineffectual. She also knew that in 1983 a further attempt was made to alleviate the problem. At some stage she became the union representative of her union, the Australian Workers Union, at the factory where she was employed. The purpose of her appointment to this position was to alleviate for herself and her co-workers the disability which arises from repetitive strain injury. To summarize, she knew at all stages that she was suffering very severely from some form of repetitive strain injury; she knew that her injuries were work-related and she knew that her employer had made some ineffective attempts to re-organise the system of work at the factory to eliminate this problem. She says, however, that she did not know until she saw her solicitors in 1983 that any alternative safer work system was available to her and the other employees. The undisputed evidence of Ian Coyle, who swore an affidavit on her behalf was as follows: "Repetitive work of the kind referred to by the plaintiff as undertaken by her may be ordered and structured in the following ways with a resultant reduction of the constancy and level of stress to the upper limbs of persons engaged in such work: (i) By regular rotation of duties. (ii) By providing workers with a variety of tasks in the one working day. (iii) By providing rest periods between 5-10 minutes for each worker every hour. (iv) By ensuring that plant and equipment is ergonomically designed to minimise or eradicate working positions which will give rise to the risk of repetitive arm syndrome. In my opinion there was knowledge available and practical ways of preventing repetitive strain injuries in 1973 and such knowledge should have been given to the company by its physician. It is also my opinion that even in the absence of the provision of such advice to the company, there was publicly available information as to practical ways of preventing repetitive strain injuries in and before 1973 and the company should have been aware of those documents." When Mr Coyle said that information was "publicly" available he clearly meant "was generally known to the Public". The Limitation Act 1969 s58(2) provides as follows: Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that (a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action; and (b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period, the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court, and for the purposes of paragraph (b) of subs(1) of s26, the limitation period is extended accordingly. The various terms used in that sub section are defined in s57 thus, the "material facts relating to a cause of action", is defined as follows: "(i) the fact of the occurrence of negligence nuisance or breach of duty on which the cause of action is founded; (ii) the identity of the person against whom the cause of action lies; 10 UNREPORTED JUDGMENTS (iii) the fact that the negligence nuisance or breach of duty causes personal injury; (iv) the nature and extent of the personal injury so caused; and (v) the extent to which the personal injury is caused by the negligence nuisance or breach of duty;" The material facts relating to a cause of action of a decisive character are defined in s57(1)(c) which is as follows: "material facts relating to a cause of action are of a decisive character if, but only if, a reasonable man, knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing: (i) that an action on the cause of action would (apart from the effect of the expiration of a limitation period) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the cause of action; and (ii) that the person whose means of knowledge is in question ought, in his own interests, and taking his circumstances into account, to bring an action on the cause of action;" "Appropriate advice" is defined in s57(1)(d) as follows: "appropriate advice", in relation to facts, means the advice of competent persons, qualified in their respective fields to advise on the medical legal and other aspects of the facts, as the case may require;" S57(1)(e) defines when a fact is not within the means of knowledge at a particular time, it is in the following form: "a fact is not within the means of knowledge of a person at a particular time if, but only if: (i) he does not, at that time, know the fact; and (ii) in so far as the fact is capable of being ascertained by him, he has, before that time, taken all reasonable steps to ascertain the fact;" It follows that for a plaintiff in the position of Miss Dousi to establish an entitlement to an extension of time under s58 a plaintiff must establish: 1. The existence of a fact relating to her cause of action; (a) which is a material fact, (b) of a decisive character and (c) which was outside her means of knowledge. 2. That a reasonable person properly advised would not have brought an action without knowledge of the fact. The Master dealt with the problem solely on the basis of s57(1)(e) and he found that the applicant/plaintiff did not know until the end of 1983 or beginning of 1984 of a material fact of a decisive character, namely, that at all material times there were work practices which the defendant could have adopted and of which it should have been aware, which would have protected its workers, including the plaintiff, from injuries of the type which she complained. He also found that until she obtained that advice from her solicitors it was reasonable for her not to be aware of such a material fact. On appeal Allen J found that it was not reasonable for her to have remained ignorant until 1983/early 1984 of the existence of available alternatives. His Honour's conclusion is hardly surprising. The undisputed facts are that although she was suffering considerably from 1973 until 1984 she took no steps whatsoever to ascertain a fact which would have been a material fact of a decisive character. That fact could easily have been ascertained because it was publicly known. At any stage in this period she could have sought her solicitor's advice URJ DOUSI v COLGATE PALMOLIVE PTY LTD (NO 2) (Meagher JA) 11 but chose not to do so. At any stage in this period she could have sought the advice of her trade union but made no attempt to do so. The application of the Act to the circumstances of the present cause is extremely difficult. It is a piece of legislation the obscurity of which has long been deplored by judges both in England and Australia. It was, of course, introduced as a result of a recommendation of a Law Reform Commission. This Court was the beneficiary of extremely able and persuasive arguments by counsel on behalf of both the applicant/plaintiff and the defendant/employer. Nonetheless the obscurities of legislation have not been fully elucidated. Counsel for the employer/defendant submitted that the case had really been decided on a false issue, viz the application of s57(1)(e). He submitted that the application of that paragraph did not arise as the plaintiff had not survived the anterior test required by s57(1)(c). This was a submission which was not dealt with either by the Master or by the Judge on appeal from the Master. Nonetheless it was a submission which had been put to His Honour. The basis of this submission is that the existence of alternative work system was not a material fact of a decisive character within the meaning of s57(1)(c). In Do Carmo v Ford Excavations Pty Limited (1983-1984) 154 CLR 234 the High Court of Australia was confronted with a similar situation. In that case the application for extension of time was also relying on a recent discovery of the existence of an alternative system of work. The approach of Deane J was as follows: "... The legislative policy underlining the sections is plain enough. It is that the limitation period should be extended only in favour of a person who was, without fault on his part, unaware that he had a worthwhile cause of action until not more than twelve months before the commencement of proceedings. In that context, the reference in s58 to "any" of the material facts of a decisive character not being within the means of knowledge of the applicant should be construed as being to a fact or facts which would need to be within the means of knowledge of an applicant before it could be said that the facts within his means of knowledge constituted material facts of a decisive character". Thus, if any one of the facts A, B or C would, with other facts within the means of knowledge of the applicant, satisfy the requirements of "the material facts of a decisive character" it will not suffice, for the purpose of s58, the applicant was unaware of fact A while being aware that he had a worthwhile cause of action in that he was aware of both facts B and C. In such a case, the applicant will only be, for the purposes of s58, unaware of any" of the material facts of a decisive character if he was unaware of facts A, B and C, that is to say, if the facts which were within his means of knowledge were not, of themselves, such as to constitute material facts of a decisive character." "... Subject to an important qualification, one or more of the material facts of a decisive character will be shown not to have been within the means of knowledge of an applicant if it appears that an applicant if it appears that an applicant did not have within his or her means of knowledge some fact or facts which, in the context of the facts within his or her means of knowledge, made the difference between his or her having and not having a worthwhile cause of action.... a distinction must be drawn, for the purpose of determining whether an applicant had the material facts of a decisive character within his means of knowledge, between the primary or particular facts relating to a particular cause of action in the sense that they provide the context in which or by reference to 12 UNREPORTED JUDGMENTS which the significance of the particular primary facts should be assessed and any expert legal or other advice should be formulated. It would not suffice for an applicant to show that some general or secondary fact was not within his means of knowledge if that fact was a matter of common knowledge among appropriate advisers whose advice is, for the purposes of determining whether material facts are of a decisive character, postulated as having already been taken " (250-251) "On the other hand, the appellant had within his means of knowledge the critical particular facts of his case against the respondent. Those facts included the nature of his ailment, his exposure to dust in his employment with the respondent, that his ailment was "a dust disease" which 'could or must be attributed to his period of employment" with the respondent and, most important for present purposes, that the respondent had taken no steps at all to minimize the level of silica dust to which the appellant had been exposed in the course of his employment. Those facts constitute the particular or primary factual basis of the appellant's case in negligence against the respondent. The facts of which the appellant was unaware were general facts of which any appropriate adviser on standards or safety in the building industry would be aware and which would constitute part of the context in which appropriate advice on whether the respondent had been guilty of negligence had been formulated... it appears to me to be plain that the facts within the appellant's knowledge were such as to lead a reasonable man, knowing those facts and having taken the appropriate advice on them, to conclude that the appellant had a worthwhile cause of action against the respondent. In other words, the facts within the appellant's means of knowledge were, of themselves, adequate to satisfy the requirement of 'material facts of a decisive character"." (252-253). Wilson J agreed with Deane J. However, Dawson J and Brennan J adopted a different approach. That approach is illustrated by the following quotation: "Tt has been suggested that a distinction can be drawn between primary and secondary facts and that the material facts to which s57(1)(b) refers must be primary facts. With all due respect this distinction is one which I do not think is relevant in the present context; certainly it is not a distinction drawn by the legislation itself. What is relevant is what the applicant had to prove in order to establish negligent conduct. Without evidence of what was a safe system of work his case in negligence was bound to fail because of the failure to prove the fact of the occurrence of negligence. Proof of a safe system of work would, therefore, seem to me to have been proof of a primary fact, but, in any event, I think it was proof of a material fact relating to a cause of action within the meaning of the section." (per Dawson J at 258). The fifth judge Murphy J adopted an entirely different approach which was rejected by all four of his brethren. It follows that the High Court of Australia has not given a definitive interpretation to the section. However, the approach of Deane and Wilson JJ seems to have been applied by Yeldham J in Wills v Minerals Pty Limited (1985) 3 NSWLR 543 and perhaps by the majority of the Court of Appeal in Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283 and in Brunton v D O'Bryan and Co Pty Limited (unreported 4 August 1988). In the present case I am of the view that the approach of Deane J and Wilson J should be applied so that the existence of an alternative system of work is not a primary fact; that it is therefore not "a material fact relating to a cause of action" which is "of a decisive character" within the meaning of section 57(1)(c) and, that the present matter is not resolved by the consideration of the meaning and extent of s57(1)(e). URJ DOUSI v COLGATE PALMOLIVE PTY LTD (NO 2) (Meagher JA) 13 If I am wrong in this regard, and the problem is to be considered in the light of s57(1)(e), a further difficulty arises. That difficulty is whether that paragraph requires one to take either an objective or a subjective approach. Unassisted by authority, I should have come to the conclusion that s57(1)(e)(ii) required one to take an objective approach. So much has already been held by the Full Court of Victoria in McManamny v Hadley [1975] VR 705 and by the Full Court of Queensland in Castlemaine Perkins Limited v McPhee [1975] QR 469. The contrary view had been expressed in some judgments at first instances, typified by Wright v Borzi [1979] QR 179 and Dean v Inglewood Shire Council (unreported, Queensland decision No 3342 of 1975). Of course, to say that s57(1)(e)(ii) proposes an objective test does not mean that no regard may be had to the background and situation of the applicant. This was also held in McManamny v Hadley (supra). The question then becomes whether a reasonable woman in the position of the applicant/plaintiff between 1973 and 1983 would have reasonably taken steps to discover, and in fact had discovered, that an alternative system of work was available to her employer. I appreciate that in some circumstances it would be reasonable for such a person to take no steps at all (see Hendersons case per Mahoney JA at 299. I also appreciate that the Court could not approach cases such as the present on the supposition that the ordinary reasonable employee will contemplate taking legal action at the first available opportunity. Nonetheless it seems to me that a reasonable person in the position of the applicant/plaintiff who had for a protracted period of time suffered repeated injuries at work which she well knew were work related could be expected after a few years to have appreciated that she was entitled to have her employer compensate her at Common Law for the general damages she had suffered and armed with that suspicion would have taken some steps to ascertain what her legal rights were. Counsel for the appellant submitted that she had no reason to make any effort at all to enquire whether she had a cause of action against her employer until September 1983, when she was threatened with dismissal. Until that time, so the argument ran, she was content with her lot, and to make enquiries would not have been reasonable. But to my mind the fallacy of this argument is that, on the admitted facts, a reasonable woman must have realised the strong possibility that she had a potentially strong case against her employers for general damages, whether she remained in employment or not. In my view the appeal should be dismissed with costs. Counsel for the Appellant: PM Hall Solicitors for the Appellant: Carroll and O'Dea Counsel for the Respondent: SJ Moteby Solicitors for the Respondent: Rashworth Dodd and Menczel