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. The extensions were sought under the provisions added to the Limitation Act 1969 by the Limitation (Amendment) Act 1990 and in particular s60F, 60G and CL4 of Sched 5. The decision of this Court in Electricity Commission u Plumb (1992) 27 NSWLR 364 establishes that, in the case of a pre-1990 injury such as this, a party seeking an extension of a limitation period must establish that he "was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time" (s60F), the relevant time being "at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted" (s60I(1)(a)). If these threshold requirements are satisfied the applicant must establish that it is "just and reasonable" that the limitation period be extended (s60G(2)). 2 UNREPORTED JUDGMENTS The plaintiff's exposure to industrial noise gave rise, in theory, to fresh causes of action for each day of such exposure until his retirement in 1979. The last of those causes of action became provisionally statute barred in 1985. To secure an extension of any of the limitation periods for those causes of action the plaintiff had to establish that he was unaware before the end of 1985 of the fact, nature, extent, or cause of his industrial deafness. There was no evidence that he was unaware of any of these matters at that time. In fact the evidence showed that he was aware of the fact of being deaf, the nature of his deafness, and the precise extent of it in 1971 and again in 1982. He was also aware that his deafness had been caused by industrial noise at work. The plaintiff sought to bring himself within s60F by establishing that he was not aware at the relevant time that his deafness had been caused by the negligence of his employer and that such negligence gave him a cause of action for damages. It was submitted that either or both of these matters were comprehended within the expression "the... cause of the injury" in s60F. However, in Dedousis v The Water Board (20 August 1993, unreported) this Court held that s60F had a more limited operation. Clarke JA who gave the principal judgment said at 8:- "... it would seem to me to be quite unsound to treat the word 'cause' in s60F as though it were a shorthand way of saying, for instance, 'caused by breach of duty'... in the context... I prefer the view that the inquiry is directed at the applicant's awareness of the factual cause of the injury. In this case the question was whether the applicant had shown that he was unaware that his injury had been caused by his continuous exposure to the noise generated by jackhammers". In the light of that decision, which was not available to the learned primary judge when he gave his decision, it is clear that the appeal must be allowed. In my opinion the following orders should be made:- 1. Appeal allowed with costs. 2. Set aside the order extending the limitation period to 25 November 1992. 3. In lieu thereof order that the notice of motion of 3 March 1993 be dismissed with costs. 4. The respondent is to have a certificate under the Suitors' Fund Act for the costs of the appeal. Powell JA I agree with Handley JA. 1. Appeal allowed with costs. 2. Set aside the order extending the limitation period to 25 November 1992. 3. In lieu thereof order that the notice of motion of 3 March 1993 be dismissed with costs. 4. The respondent is to have a certificate under the Suitor's Fund Act for the costs of the appeal. Counsel for the Appellant: A Bartley Counsel for the Respondent: J Crumpton QC/B Robison Solicitors for the Appellant: A O Ellison and Co Solicitors for the Respondent: Maurice May and Co