JOHN LYSAGHT (AUST) LTD v BUTFIELD [1993] NSWCA 146

JOHN LYSAGHT (AUST) LTD v BUTFIELD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

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

[1993] NSWCA 146

LIMITATION — EXTENSION — LATENT INJURY — EXTENT OF INJURY The plaintiff worked for the defendant from 1964 to 1979 when he retired. He began to experience hearing difficulties in 1968 and following tests which indicated hearing loss in both ears, received lump sum compensation payments in 1971 and again in 1982. The primary Judge granted an extension of the limitation periods under s60G(2) of the Limitation Act.

Held:

(1) The plaintiff failed to establish that he was unaware of the fact, nature, extent or cause of his industrial deafness before the end of 1985 when the last of his causes of action became provisionally statute barred.

Electricity Commission v Plumb (1992) 27 NSWLR 364;

(2) The enquiry under s60F is directed at the plaintiff's awareness of the factual cause of the injury.

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

Mahoney JA I agree with the judgment of Handley JA and the orders proposed.

Handley JA This is an appeal by leave of this Court from an order by his Honour Judge Madgwick QC under s60G(2) of the Limitation Act extending limitation periods until 25 November 1992. The order extended the limitation periods until after the filing of the plaintiffs statement of claim in which he sought damages from the appellant for negligently causing his industrial deafness. The plaintiff worked for the defendant from 1964 to 1979 when he retired. His exposure to industrial noise had therefore ceased some fourteen years before the order was made.

It appears from the statement of claim that the plaintiff started to experience hearing difficulties in 1968. His hearing was tested in 1971 when he was found to have a loss of 16.5 per cent in his right ear and 18.8 per cent in his left. In 1982 his hearing was again tested and he was found to have suffered a further hearing loss of 8.5 per cent in his right ear. In 1971 and again in 1982 he received lump sum compensation payments for his deafness.