COMMERCIAL MINERALS PTY LTD v HOLLINS; AUQAL PTY LTD (ORIGINALLY QUALITY EARTHS PTY LTD) v HOLLINS [1993] NSWCA 74

COMMERCIAL MINERALS PTY LTD v HOLLINS; AUQAL PTY LTD (ORIGINALLY QUALITY EARTHS PTY LTD) v HOLLINS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and SHELLER JJA 22 and 23 July 1993, 22 December 1993 [1993] NSWCA 74

LIMITATION — LATENT INJURY TORT — SUCCESSIVE TORTFEASORS DAMAGES — SEPARATE JUDGMENTS AGAINST SUCCESSIVE TORTFEASORS.

The worker brought proceedings in March 1991 in the Dust Diseases Tribunal against three companies that employed him at different times between 1953 and 1986 alleging that his exposure to dust in the course of his employment had caused silicosis. The second and third defendants appealed challenging an order to extend the limitation periods to September 1993 and the entry of a single judgment against all the defendants.

Held:

(1) The worker was aware of the fact, nature, then extent and cause of his silicosis by April 1979 when all causes of action against the second defendant became provisionally statute barred, Electricity Commission v Plumb (1992) 27 NSWLR 364;

(2) The worker's knowledge of the extent of his silicosis was for all practical purposes complete at all times after 2 April 1979 as causes of action against the third defendant were becoming provisionally statute barred.

(3) Variations in the later progress of a disease within limits that were reasonably foreseeable at an earlier stage cannot establish a relevant lack of awareness of the nature or extent of that disease for the purposes of s60F of the Limitation Act

(4) The enquiry under s60F is directed at the plaintiffs awareness of the factual cause of the injury.

Dedousis v Water Board (Court of Appeal, 20 August 1993, unreported) applied;

(5) Accordingly the orders extending the limitation periods in respect of the second and third defendants should be set aside.

(6) Future compensation benefits under the Workers' Compensation (Dust Diseases) Act 1942 should be deducted in computing the worker's future economic loss.