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. In these circumstances the case for an order under s58 of the Limitations Act was not made out. Whitlam AJ was therefore right to dismiss it. The plaintiff should have leave to appeal but the appeal should be dismissed with costs. It remains only to add the usual complaint about the obscurity of the legislation here examined, the application of which is always a gloomy duty, with little certainty of a confidently correct result. 2 UNREPORTED JUDGMENTS Mahoney JA In this proceeding the plaintiff seeks an order pursuant to s58 of the Limitation Act that the limitation period "for each cause of action for the plaintiff' as there specified "be extended until 1 September 1989". The plaintiff had already, on 30 November 1988, commenced proceedings against the defendants, presumably in respect of the causes of action referred to. A statement of claim bearing that date had been filed. Presumably the purpose of the application under s58 was to ensure that that proceeding was commenced within the relevant limitation period or, possibly, to ensure that another proceeding may be commenced. An order can be made if and only if (as far as is here relevant): "... 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." The order which the court can make is, and is only, that the limitation period for the cause of action be extended "so that it expires at the end of one year after that date', ie, the date on which the relevant fact came within the means of knowledge of the plaintiff. Therefore, the plaintiff must show that the relevant fact came within his means of knowledge on a date which will make the exercise of the power of extension of the limitation period of advantage to him. He must therefore show that such fact came within his means of knoowledge after 30 November 1987. It is, as I have said: Ditchburn v Seltsam Limited (Court of Appeal, 19 September 1989, unreported); important that an applicant for an order under s58 identify precisely the fact which, on his case, came within his means of knowledge after the relevant date. It is not clear what, in this case, is the fact in question. Nothing relevant appears to have occurred - at least nothing was suggested - between the plaintiff's consultation with Dr Gianoutsos on 24 July 1985 and his consultation with Dr Kaufman on 16 August 1988. It must therefore appear that the relevant fact or facts came within his knowledge in or after August 1988. The substance of the plaintiff's case is, I think, that what then came within his means of knowledge was that his condition was, to put the matter compendiously, bad enough to justify suing. This involves, again in general terms, (a) that (before that time) it was not bad enough to justify suing and (b) that (after that time) it came within his means of knowledge that it was. (a) The Act does allow of an order being made under s58 notwithstanding that, before the relevant date, the plaintiff had (or it was within his means of knowledge to know that he had) a right to sue on the cause of action. It contemplates the possibility that, before the relevant date, the plaintiff had in fact a cause of action but "a reasonable man knowing those facts and having taken the appropriate advice on those facts" would not "regard those facts as showing": that the prospects of success or the damages to be recovered were sufficient to justify the bringing of an action; and that he ought "in his own interests and taking his circumstances into account, to bring an action". And, given such circumstances, the section contemplates that the relevant change in position may constitute a "material fact relating to the cause of action" "of a decisive character'. In other words, a change in (as I shall describe them) the "prospects of success" factor and the 'ought to sue" factor may constitute such a material fact. URJ KYPRIANOV v COCKATOO DOCKYARD PTY LTD (Mahoney JA) 3 The plaintiff must therefore show that the "prospects of success" factor and/or the "ought to sue" factor did not exist before August 1988 and that there was a relevant change in relation to them after that date. I am satisfied that, before August 1988 the postulated reasonable man would not have regarded either factor as existing. He would, I think, have thought that the damages apt to be recovered were not sufficient to justify the bringing of an action. The plaintiff would, I shall assume, have obtained a verdict. There was in this appeal no examination of what is necessary to constitute "the injury" necessary to complete the cause of action. It was accepted that the plaintiff had inhaled asbestos material and that there were signs of it in his lungs. It appears, or it may be, that the significant loss from such a condition comes, not when asbestos fibres are lodged in the lung, but only when the asbestos fibres, being of the relevant kind, have penetrated the pleura so as to cause particular kinds of damage. If and insofar as it may be proper to refer, in this case, to evidence given in that regard in another case, this appears to be the thrust of the evidence as given in American Home Assurance v Saunders 1987) 11 NSWLR 363 at 376G-379G. It appears that the plaintiff's condition had not involved, or at least reached, the significant stage of development there described. The plaintiff may, of course, in any proceedings recover damages for the possibility that the significant stage of development of the condition may occur at a later stage. But those damages (compared with the damages to be recovered if or when that stage should occur) would be small. I take into account in this regard such mental anguish or psychological difficulties as the plaintiff may now rely upon. I do not think that the section, in referring to "damages sufficient to justify the bringing of an action" looks merely to that comparison. It looks, in general, rather to the quantum of the damages apt to be recovered. The matter is not to be determined only by whether the damages would, eg, exceed the costs of recovering them. The provision, in referring to "resulting in an award of damages sufficient to justify the bringing of an action on the cause of action" uses "justify" not in a technical but in a broad and practical sense. I do not think that the "ought to sue" factor was present prior to August 1988. The reasonable man would compare the damages apt to be recovered in the plaintiff's conditlon and the damages apt to be recovered if the condition developed to its later stage. The difference would be likely to be very great. And, I think, the reasonable man would take into account that, if the significant stage of the condition was reached, the loss which the plaintiff and those dependent on him would suffer would be likely to be so much greater that, in the relevant sense, it would not be in his own interest to sue unless and until that stage was reached. On this basis, the "ought to sue" factor was not then present. (b) The difficulty I feel in the present case is in formulating the change which, following the relevant date, has occurred. Subject to one matter to which I shall refer the plaintiff's knowledge of his condition is, I think, relevantly no different from what it was prior to August 1988. What he now knows he knew, or ought on the statutory assumptions to have known, at that time. His condition has in fact not changed. And, as far as the evidence goes, there is no increased likelihood that it will change, at least so as to involve a change of the significance to which I have referred. There has, of course, been a change in the plaintiff's age. It is arguable that, with the passage of time, a plaintiff who otherwise might be justified in refraining from suing until it became clear whether his condition would deteriorate, is 4 UNREPORTED JUDGMENTS entitled to sue in his own interests to recover the damages appropriate to the possibility of development of the condition to which I have referred. But I do not think that the change in the plaintiffs age has led to a situation in which, whilst previously the "ought to sue" factor was not present, the position now is changed. For these reasons, the plaintiff's application should in my opinion fail. It should be dismissed with costs. Hope AJA The plaintiff has applied for leave to appeal against the refusal by Whitlam AJ to make an order under s58 of the Limitation Act 1969 extending the time within which he might bring otherwise statute-barred proceedings against the defendants. The plaintiff was employed by Cockatoo Dockyard Pty Limited between 1952 and 1954. He was employed by the Commonwealth at Garden Island from 1954 until some time towards the end of 1988 when he was retrenched. In the proceedings which he instituted on 30 November 1988 he claimed that, as a result of his exposure to and inhalation of asbestos dust and fibre during both periods of employment, he developed asbestosis and consequential disabilities and damage and that he had a cause of action for negligence against each defendant. In order to entitle him to the order he sought, the plaintiff had to show that one or more of the material facts of a decisive character relating to the cause of action was not within his means of knowledge until a date after 30 November 1987, and that there is evidence to establish a cause of action, apart from any defence founded on the expiration of a limitation period. Although at the hearing before Whitlam AJ it was submitted for the defendants that the plaintiff had not shown that there was evidence to establish the cause of action and a notice of contention was filed in this Court on the ground that Whitlam AJ erred in finding there was evidence to establish the damage upon which the cause of action depended, this contention was abandoned during the hearing. The short history of the matter begins with the periods of his employment with each of the defendants during which he worked in close contact with asbestos and in areas in which there was asbestos dust which he would have inhaled. At least by 1980 he became aware that working in these conditions involved a health hazard and indeed in the following years he became very anxious about the possibility that he might be suffering from a condition resulting from asbestos or asbestos dust. He said in an affidavit that at some time after 1982 he had some chest pain and felt constant fatigue. In 1985 he saw his local doctor, Dr Borton, who referred him to a specialist, Dr Gianoutsos. In the absence of this doctor, the plaintiff saw Dr Torzillo, a thoracic physician. In his report dated 24 July 1985 Dr Torzillo recorded that the plaintiff was complaining of a right and left-sided pain in the region about the renal angle. Examination showed that the renal angle was tender to palpation on the left side and a chest x-ray showed pleural thickening in the lateral and anterior chest walls. The report went on to say: "TI think it is unlikely that this man's pain is related to chest disease. However, he is aware of his asbestos exposure and is concerned about any intrathoracic abnormality. I have reassured him that his pleural thickening is almost certainly benign and unlikely to cause much difficulty in the future." The doctor said that he had organised formal lung function tests to assess any evidence of respiratory disease and that the plaintiff was to have a CT scan of the thoracic cavity which would more clearly delineate the pleural thickening and might reveal other evidence of calcified pleural plaques not evident on the chest x-ray. He expressed the view that the plaintiff's pain seemed much more likely either to be musculo-skeletal or possibly related to his previous renal calculi. URJ KYPRIANOV v COCKATOO DOCKYARD PTY LTD (Hope AJA) 5 On 8 August 1985 Dr Gianoutsos sent a report to Dr Borton, having himself seen the plaintiff saying: "The CT scan demonstrated the areas of pleural plaques associated with calcification and it was of interest that the CT also demonstrated increased lung markings at the base which would be consistent with interstitial (sic) lung disease also associated with his asbestos contact. I think it much more likely the pain this man suffers is related more to musculo-skeletal problems rather than to anything insidious related to his asbestos contact. I pointed out to him that the pleural plaques and calcification, and also the changes within the lower lung fields, were not malignant and certainly not pre-malignant." The report concluded by recording the plaintiff had been asked to return for review in two months time. Dr Gianoutsos saw the plaintiff again on 9 October 1985 when he was still complaining of lower chest pain. In his report of 10 October 1985, the doctor said that he had "some difficulty in sorting one out from the other". By this it would seem that he meant that he had difficulty sorting out the various pains from which the plaintiff suffered. He went on to say: "He also brought in films dated 1982 which showed the comparable pleural thickening over the lateral aspect of the chest wall. I reassured him that he did not have serious asbestosis that was likely to be life threatening, there was no evidence of mesothelioma, and the pleural plaques were not of any clinical significance. " In a report made on 8 December 1988 addressed to the plaintiff's solicitors Dr Gianoutsos set out again the conclusions to which he had come in 1985. Among other things he said that the chest pain of which the plaintiff complained did not appear to be associated with any respiratory symptoms. His report also contained the following statements: "His chest x-ray at that time demonstrated pleural thickening in the lateral and anterior chest walls with some evidence of degenerative disease involving the lower thoracic and lumbar vertebrae. He was reassured at the time that his pleural thickening was almost certainly benign and unlikely to cause much difficulty in the future. It was because of Mr Kyprianou's concern and the awareness of his previous exposure to asbestos in the course of his work that several more formal investigations were undertaken including a CT scan which demonstrated the areas of pleural plaques associated with calcification and the CT scan also demonstrated increased lung markings at the base. These markings would be consistent with interstitial lung disease also associated with his asbestos contact. Again I reassured him that the changes in the lower lung fields were not malignant and certainly not pre-malignant. On the basis of the evidence available to me three years ago, in 1985, this man had evidence of pleural plaques, a non malignant, non pre-malignant condition, but certainly associated with his previous asbestos exposure. This is not a condition which would cause any specific respiratory symptoms. In terms of prognosis I believe on the basis of my examination in 1985 that his prognosis was excellent." In February 1989 the plaintiff's solicitors wrote to Dr Gianoutsos asking him had he ever informed the plaintiff that he had asbestosis. Dr Gianoutsos replied that he was aware of having told the plaintiff in 1985 that he had pleural plaques and that there were some changes at the lung bases which were clinically insignificant at that time but were associated with crackles in his lung fields, and that he was unaware of having mentioned specifically to the plaintiff that he believed that the radiological changes were due to asbestosis. However in evidence the plaintiff agreed that Dr Gianoutsos had told him in 1985 that he had 6 UNREPORTED JUDGMENTS asbestosis but that it was not serious. He also agreed that he was concerned that he had some asbestosis although he was happy that he did not have cancer. After seeing Dr Gianoutsos in 1985 he went back to work in the workshop at Garden Island. His retrenchment in 1988 followed upon some problem he had with his shoulders, but it is not suggested that this problem was in any way related to asbestosis. In his affidavit the plaintiff said that he believed that his condition had deteriorated from 1985 in these ways: "I find that when I walk fast, when I climb stairs or ladders or walk up hills I have chest pain. I am breathless. I have to stop. I also have some pain on the lower part of my back around the bottom of my lungs." In oral evidence he said that he had more trouble with his chest in 1988 when he saw Dr Kaufman than he had had in 1985. The plaintiff saw Dr GL Kaufman on 16 August 1988 and on 13 and 20 September 1988 and on another occasion a short time later. His report of 1 March 1989 recorded that the plaintiff gave a history of limitation of his exercise capacity in that he felt he could not keep up with peers on level ground but at his own pace he would walk 300-500 metres before breathlessness ensued. He also suffered from chest pain. Dr Kaufman saw a chest x-ray taken in 1985 and the CT scan made in that year and he had x-rays taken himself. He expressed these views: "The chest X-ray showed bi-lateral pleural plaque and a fine reticular pattern at both bases of the lung fields. I arranged for comparison of the chest X-ray with one performed in 1985, and I concluded that there had been no change. I perused the CT scan performed in 1985 which I felt was consistent with mild asbestosis as well as of course pleural plaque." The doctor went on to say that he had arranged for comprehensive lung function tests to be carried out and that his conclusion was that lung volumes were normal as were the elastic properties of the lung and the transfer factor. He said that the only abnormality was not in keeping with asbestosis but was consistent with the effect of smoking cigarettes in the past. He then expressed these views: "T felt that Mr Kyprianou has pleural plaque and mild involvement of the interstitium of the lung. It is likely considerable exposure to asbestos at Garden Island dockyard and Cockatoo Island dockyard together with the presence of bi-lateral pleural plaque would strongly suggest that the interstitial disease is asbestosis. As things stand, I do not feel that Mr Kyprianou's capacity for employment is compromised at the present time. The degree of asbestosis would have to be regarded as very mild, based on lung function studies. However, it is generally accepted that asbestosis may progress, in the absence of further exposure and thus regular monitoring of Mr Kyprianou, both clinically and with lung function tests would be desirable, annually. In the presence of asbestosis the risk of pulmonary malignancy is increased, which he has modified to his benefit, having ceased smoking. The risk of mesothelioma exists but would not be influenced by the presence of either asbestosis or pleural plaque." He concluded by saying that he pointed out to the plaintiff that in his opinion based on x-ray findings and clinical examination, mild asbestosis did exist but that this conclusion was not supported by lung function testing. URJ KYPRIANOV v COCKATOO DOCKYARD PTY LTD (Hope AJA) 7 Dr Gianoutsos saw the plaintiff again on 13 February 1989. The plaintiff complained that since 1985 he had noted increased shortness of breath, particularly when walking on the flat, and this occurred more rapidly when he attempted to climb rises. He reviewed the clinical material available to him over the period from 1982 to 1988 and said that the plaintiff did indeed have evidence of pleural plaques which had not changed in character between those years on the basis of the chest x-ray films. Again no changes in the lung bases were noted on the 1988 film. He agreed with Dr Kaufman's opinion that the plaintiff probably had mild basal changes consistent with asbestosis which were present in 1985 but that there did not appear to be any recent deterioration. He summarised his opinion by saying that since he had last seen the plaintiff in 1985 he could find no clinical evidence of deterioration despite the plaintiff's claim that his effort capacity had been reduced over that period. He thought that this might be due to interstitial lung disease associated with his exposure to asbestos but that more detailed lung function test results would help him in making this assessment with more certainty. In short oral evidence Dr Gianoutsos said that, having seen the result of the lung function tests, the results were within normal limits except for one minor abnormality which would have related to the plaintiff's previous smoking habits and was totally independent of any asbestos exposure. He said that the tests were not consistent with any deterioration due to asbestosis. The remaining medical evidence was contained in a report of Dr B Gandevia to the Australian Government Solicitor on 2 February 1989. He described, among other things, the plaintiff's chest pains and also the plaintiffs claim that he could keep up with others of his own age at ordinary pace walking on the flat but he became short of breath if he hurried or if he had to climb hills or stairs. He saw x-ray films made in 1980, 1982, 1985 and 1988 and also a CT scan, presumably the one of 1985. He concluded that the plaintiff had had significant asbestos exposure that he had bilateral pleural plaques on the chest wall which reflected past asbestos exposure which had no prognostic significance and did not influence lung function. There was probable evidence of mild basal intestitial fibrosis radiographically, receiving some support only from the presence of inspiratory crackles. The doctor went on to say that if the plaintiff had asbestosis it was insufficient to interfere with his lung function and that his disability was therefore mild. He suggested that there may be some contribution to limitation of exercise tolerance by angina but that the plaintiff would be able to do his present work and to continue to do so until the normal retiring age. He said that, assuming mild asbestosis his prognosis was for a normal life expectancy "as disability in these mild cases is only rarely rapidly progressive." It is in these circumstances that Whitlam AJ had to consider whether the plaintiff had made out a case for extension of time. His Honour's conclusions were that, while Dr Kaufman had told the plaintiff in September 1988 that he had asbestosis, Dr Gianoutsos had earlier given him the same advice in 1985. After reviewing the evidence which established that there was no ciinical evidence of deterioration in the plaintiff's condition since 1985 and rejecting a submission made by counsel for the Commonwealth that there was no evidence that the plaintiff had suffered any damage, his Honour concluded that the plaintiff had been in actual possession of the same information about his condition as Dr Kaufman communicated to him in September 1988 since at least August 1985, and he dismissed the application for extension of the limitation period. 8 UNREPORTED JUDGMENTS It will be seen that there were two distinct questions involved in the plaintiff's application. First, were any of the material facts of a decisive character relating to his cause of action not within the means of knowledge of the plaintiff in 1985, and second, did he acquire a knowledge of any material facts of a decisive character after 30 November 1987. To succeed, the plaintiff must establish that some such facts were not within his means of knowledge in 1985 because, if there were none, he was out of time in making the present application. And he must show that some such facts came within his knowledge at a date after 30 November 1987, because the power of the court under s58(c) to extend the limitation period is a power to extend it for one year from that date. If there is no such date because there was no acquisition of knowledge or means of knowledge of such a fact after 30 November 1987, there is no power to extend time. "Material facts relating to a cause of action" are defined in s57(1) to include, relevantly, the nature and extent of the personal injury caused by the negligence sued upon. In relation to "material facts of a decisive character", s57(1) provides: "57 (1) For the purposes of this Division - (c) 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". If it were necessary to resolve the first of the questions I have posed above, the first matter to be looked at would be the plaintiffs knowledge, in 1985, of the nature and extent of his disease: see per Kirby P in Ditchburn v Seltsam Limited (Court of Appeal; unreported; 19 September 1989). For that purpose it would be necessary to look closely at the evidence, and particularly the medical evidence. In the view I have come to this question does not arise, but I should say that even if the plaintiff had knowledge or means of knowledge of the nature of his disease, it is very arguable that he did not have knowledge or means of knowledge of its extent. Assuming against him that he had the necessary knowledge or means of knowledge of all the material facts, it would have to be considered whether those facts were of a decisive character. It can be assumed that an action brought by the plaintiff in 1985 would have had a reasonable prospect of success. However would the action have resulted in an award of damages sufficient to justify its being brought, and ought the plaintiff, in his own interests and taking his circumstances into account, have brought such an action. It is clear that the damage which the plaintiff could have established in 1985 would be largely of a prospective rather than a present kind. No doubt suffering from asbestosis, however mildly, would attract damages, but on the material before the court his disease would have interfered neither with his work capacity until retirement nor indeed with any of his activities unless the disease progressed. The evidence as to what its progression might be was scanty, and in fact there was no progression between 1985 and 1988. The evidence was that there might be progression but it might be, indeed probably would be, quite slow. The only consequences of the disease claimed by the plaintiff in 1985 seem, on URJ KYPRIANOV v COCKATOO DOCKYARD PTY LTD (Hope AJA) 9 the evidence, not to have been related to the disease. Should the plaintiff, in his own interests and taking his circumstances into account, have brought an action in 1985 because he knew he had mild asbestosis and because by bringing the action he would stop time running, or could he have reasonably concluded that, in the absence of more positive evidence as to the likely progress of the disease and consequential disability and suffering, it would be more sensible to wait until he could present facts about its progress, and not mere possibilities, to the court. Again in the light of the conclusion to which I have come it is not necessary to resolve this question, but it certainly could be resolved in the plaintiffs favour. Assuming that the first of the questions I posed were answered in the plaintiff's favour so that any knowledge he had in 1985 or 1986 did not present a bar to his application, he must then show that he acquired knowledge or the means of knowledge of some material fact of a decisive character after 30 November 1987. For this purpose he relies upon two things. First, what he was told by Dr Kaufman and Dr Gianoutsos in 1988 and 1989. And second his evidence of matters which he regarded as showing a deterioration of his asbestosis-related condition since 1985. Accepting that Dr Gianoutsos told the plaintiff in 1985 that he had asbestosis, it is difficult to see what material facts of a decisive character the plaintiff gained knowledge or the means of knowledge about in 1988 and 1989 of which he did not have knowledge or the means of knowledge in 1985. The CT scan relied on by Dr Kaufman was the one taken and reported upon in 1985. Dr Kaufman had fresh x-rays taken, but they did not reveal anything not revealed in the 1985 x-rays. What he reported does not differ from what the plaintiff was told in 1985, save for one matter not favourable to the plaintiff's cause of action, namely, that the conclusion that the plaintiff had mild asbestosis was not supported by lung function testing. Likewise Dr Gianoutsos' report was the same as it had been in 1985, again accepting the plaintiff's evidence that he had told the plaintiff in 1985 that he had asbestosis. As it seems to me, there is nothing in the reports or evidence by these doctors to show that the plaintiff gained any relevant additional knowledge or means of knowledge in 1988 or 1989. Unfortunately for the plaintiff's case, although possibly fortunately for his health, the matters about which he gave evidence and which he reported to the doctors who examined him, such as those resulting from walking fast or up hills or climbing stairs or ladders, turned out, on expert examination, not to be related, as he seems to have thought, to any deterioration or exacerbation of his asbestosis condition. They were the results of other conditions. Whitlam AJ said that Dr Gandevia concluded that the plaintiffs mild interstitial fibrosis might contribute to some limitation in exercise tolerance. With respect to the learned judge Dr Gandevia did not say this. He allocated the cause of any limitation to angina and not to asbestosis. Consequently this evidence did not point to anything occurring after 30 November 1987 which gave the plaintiff any relevant additional knowledge or means of knowledge. Thus the second question which I posed must be answered in the negative, ie, against the plaintiff. I should add that I have considered whether any other circumstances occurred or existed after 30 November 1987. It may be that matters such as the aging of a plaintiff could, in particular circumstances, be regarded as converting material facts, not of a decisive character, into material facts of a decisive character. I express no view on this question, but if they could, I do not think that any such matters occurred or existed in the present case. 10 UNREPORTED JUDGMENTS This is an application for leave to appeal, the parties agreeing that if leave were granted the hearing should be treated as the hearing of the appeal, notice of which was filed in court. In my opinion leave to appeal should be granted but the appeal should be dismissed. The plaintiff must pay the costs of the application for leave and of the appeal. 1. Grant leave to the plaintiff to appeal from the orders of Whitlam AJ; 2. Appeal dismissed; and 3. The plaintiff to pay the costs of the appeal and of the application for leave to appeal.