BRAMBLES AUSTRALIA LTD v HALL [1995] NSWCA 58

BRAMBLES AUSTRALIA LTD v HALL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE and POWELL JJA and YOUNG AJA 24 October 1995, 8 November 1995 [1995] NSWCA 58

LIMITATION OF ACTIONS — WHETHER MATERIAL FACTS WITHIN MEANS OF KNOWLEDGE — s57b, s58 LIMITATION ACT 1969

FACTS

The opponent gradually became aware that he probably had a hearing problem after 1981 and for a few years prior to June 1993 he had ringing in his ears. On 7 January 1993, the opponent learned that he might have a cause of action against his employer for hearing loss. Subsequently on 8 June 1993 proceedings were commenced against his employer. Moore DCJ ordered that the limitation period for the opponent's cause of action be extended to 7 January 1994 pursuant to s58 and s60G of the Limitation Act 1969.

Held (per Clarke JA, Powell JA and Young AJA)

The court grants the claimant leave to appeal and will consider whether the appeal should be upheld or dismissed - Ramton v Cassin (New South Wales Court of Appeal, 25 September 1995, unreported) considered.

The sole question before the court is whether his Honour erred in granting an extension under s58(2) of the Act. The inquiry of whether "material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant" is directed at whether the applicant has taken all such steps which a person

in his position might reasonably take or, to put it another way, whether the applicant has failed to take steps which a person in his position would, reasonably, have taken. The essence of the inquiry is whether he has shown that he has not failed to take reasonable steps. Where an applicant shows that he has taken all steps to determine the relevant fact which, objectively determined, were reasonable in the circumstances he would satisfy the test. Correspondingly, where he satisfies the court that a person in his position, and with his knowledge, would reasonably, not take any steps to ascertain the relevant fact it would follow that, not only had not fault on the part of the applicant been shown, but the applicant had satisfied the test.