BRAMBLES AUSTRALIA LTD v HALL [1993] NSWCA 34

BRAMBLES AUSTRALIA LTD v HALL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONE AP, HANDLEY and POWELL JJA 12 October 1993, 8 December 1993

[1993] NSWCA 34

LIMITATION — EXTENSION — LATENT INJURY — EXTENT OF INJURY The plaintiff was employed by the defendant from 1981 onwards apart from an absence of six months in 1982. In July 1988 tests revealed hearing losses in both ears in relation to which the plaintiff received workers' compensation. The primary Judge granted an extension of the limitation periods under s60G(2) of the Limitations Act. Held:

(1) The plaintiff failed to establish the existence of the threshold requirements for an extension under the Limitations Act 1969 of his causes of action accruing after | August 1982 as he was aware by the end of July 1988, through his solicitors, if not personally, of the fact, nature and extent of his then industrial deafness.

Electricity Commission v Plumb (1992) 27 NSWLR 364 applied.

(2) The plaintiff failed to establish that it would be just and reasonable to extend the limitation period for causes of action that accrued in the period before August 1982 as the evidence suggested that little, if any, of his hearing loss was due to his exposure to noise in that period.

Mahoney JA I agree with the judgment of Handley JA.

The plaintiff seeks an extension of time to sue in respect of injuries which occurred, and therefore in respect of a cause or causes of action which accrued, before 18 December 1986. Accordingly, he must rely on Schedule 5 to the Limitation Act 1969. It is now settled that that Schedule applies only to a case "where the plaintiff was unaware of the fact, nature, extent or cause of the injury... at the relevant time". See Electricity Commission of New South Wales v Plumb (1992) 27 NSWLR 364.

For the reasons detailed by Handley JA, the evidence shows that the plaintiff was not unaware of such matters at any time here relevant. At the latest, he was aware of them, to a sufficient extent, by about July 1988. No loss occurred to him until, at the earliest, late 1982. Accordingly, no case was made out on the facts for such an extension of time.