DRAYTON COAL PTY LTD v DRAIN [1995] NSWCA 131

DRAYTON COAL PTY LTD v DRAIN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, PRIESTLEY and MEAGHER JJA 9 August 1995, 22 August 1995

[1995] NSWCA 131

LIMITATION OF ACTIONS — where employee aware that condition resulted from employment — only later aware of precautions available — whether "unaware of the connection between the personal injury and the defendant's act or omission" — requirements of section satisfied. Limitation Act 1969, s601(1), "unaware of the connection between the personal injury and the defendant's act or omission".

Dedousis v The Water Board (1994) 181 CLR 171, applied and explained. LIMITATION OF ACTIONS - Limitation Act 1969 The respondent, whilst in the appellant's employ, suffered industrial deafness. Before the expiration of the limitation period he knew that his condition resulted from his employment, but he only later learned of the principal steps which the appellant could have taken, but failed to take, to protect workers from industrial deafness. The appellant argued that the respondent could not satisfy s601(1) of the Limitation Act because he was aware that his condition resulted from the appellant's failure to maintain a safe system of work, even though he did not know the full particulars of that failure - HELD - The respondent could satisfy s60I(1). Dedousis v The Water Board (1994) 181 CLR 171 applied and explained. WORDS AND PHRASES - "unaware of the connection between the personal injury and the defendant's act or omission" Limitation Act 1969 ORDERS 1. Leave to appeal granted. 2. Appeal dismissed with costs.

Gleeson CJ This matter raises questions as to the application, to a rather commonplace set of circumstances, of the principles laid down by the High Court in Dedousis v The Water Board (1994) 181 CLR 171. The facts of the case are similar to those in Dedousis. Having resolved certain issues as to the construction of relevant provisions of the Limitation Act 1969, the High Court in Dedousis sent that case back for further consideration at first instance. It has been submitted to us that their Honours did so leaving unresolved some important questions. For reasons that will appear, I am unable to accept that submission.