KYPRIANOV v COCKATOO DOCKYARD PTY LTD [1989] NSWCA 128

KYPRIANOV v COCKATOO DOCKYARD PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, MAHONEY JA and Hope AJA 8 December 1989, 8 December 1989 [1989] NSWCA 128

LIMITATION OF ACTIONS — extension — material facts of a decisive character — whether claimant ought to have brought application for extension earlier — whether out of time — asbestosis — work in conjunction with asbestos dust and fibre dating back to 1952 — whether knew material facts before critical date in 1987, a year before action — analysis of medical evidence and factual evidence as to symptoms whether such facts as claimant knew were of a "decisive character" — whether claimant knew "nature" and "extent" of his disability — whether a reasonable man knowing the facts known to the claimant and properly advised would earlier have commenced the application for extension of time — whether any deterioration in his medical condition caused by the wrongs sued for discovered after critical date to warrant extension of the limitation period — held: (affirming Whitlam AJ) (1) (Semble) On the evidence the claimant did not earlier have relevant knowledge as to the extent of his disability; (2) (Semble) In any case, a reasonable man with the knowledge of the claimant and properly advised would not have earlier brought an action; (3) But nothing occurred after the critical date caused by the wrongs alleged which gave the claimant additional knowledge or means of knowledge to warrant the extension sought; (4) Accordingly leave (by majority) granted but appeal dismissed. Ditchburn v Seltsam Limited, Court of Appeal, unreported, 19 September 1989 referred to. Limitation Act 1969, s57,s58.

Kirby P I agree with the orders proposed by Hope AJA and with his reasons.

First, it is arguable that before the critical date on 30 November 1987, the plaintiff (the claimant for leave) did not know the "extent" of his disease. Upon this basis, I will assume that certain material facts were not then within his means of knowledge. Secondly, I would consider it likely that the plaintiff could establish that, in his own interests and taking into account his circumstances, it could not be said that he ought to have brought an action for damages in 1985, ie before the critical date. At least, I will assume as much. This is relevant to the question of whether material facts were of a "decisive character". Thirdly, however, I do not consider that the plaintiff acquired fresh knowledge of a material fact of a decisive character after the critical date from anything his medical advisers more recently found and told him. Fourthly, I do not consider that anything in his age or health or general circumstances, caused by the wrongs sued for, relevantly changed between the earlier symptoms and examinations in 1985 and those occurring more recently, after the critical date.