SHARP v STATE RAIL AUTHORITY OF NEW SOUTH WALES [1995] NSWCA 422

SHARP v STATE RAIL AUTHORITY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SHELLER and COLE JJA 4 September 1995, 8 November 1995

[1995] NSWCA 422

LIMITATION OF ACTIONS — industrial deafness — where employee aware of the some of the causes of injury — other relevant acts and omissions of employer become evident on consultation with solicitor — breach of Australian standards — statement of claim filed out of time — whether time under s60G of Limitation Act 1969 should be extended — whether applicant unaware of connection between injury and respondent's elaborated acts and omissions — 601(1)(a)(iii) — held: (by maj) No extension.

Dedousis v The Water Board (1994) 181 CLR 171 applied.

WORDS AND PHRASES - "unaware of the connection between the personal injury and the defendant's act or omission".

LIMITATION OF ACTIONS - industrial deafness - application for extension of time - whether applicant unaware of connection between injury and defendant's act or omission - railway worker suffers hearing loss because exposed to loud telephones over extended period - formulated intention to sue but unable to raise funds - belated visit to solicitor - upon visit becomes aware of Australian Standards requiring employer tests for industrial deafness and preventive measures - whether plaintiff proved that he was unaware of the connection between the personal injury and the employer's relevant acts or omissions - held: (Cole JA, Sheller JA concurring; Kirby P dissenting) (affirming the order of HH Bell DCJ refusing to extend time): The plaintiff was aware of the connection between his hearing loss and the use of noisy telephones and of the existence of alternative systems - accordingly the provision of an extension of time under s60G of the Limitation Act 1969 was unavailable by reason of the terms of s60I of that Act.