ALLEN v DRAYTON COAL PTY LTD [1995] NSWCA 14

ALLEN v DRAYTON COAL PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, POWELL JJA and BADGERY-PARKER AJA 27 October 1995, 1 December 1995

[1995] NSWCA 14

Limitation of Actions — Extension of time — When limitation period commences-"Disease" of gradual onset — "Industrial deafness" — Awareness of "connection between the... injury and the defendant's act or omission'... Whether "Just and reasonable to... order that limitation period... be extended"

Clarke JA I agree with Powell JA that the appellant failed to demonstrate appealable error in the exercise by his Honour of his judicial discretion. Accordingly, I agree with the orders proposed by Powell JA.

Powell JA Two-questions have been debated on this appeal, by leave granted by the Court on 17th September 1995, from a Judgment delivered by O'Reilly DCJ on 15 July 1995, when his Honour dismissed with costs an application which had been brought by the Appellant seeking an order extending the time within which he might bring proceedings against the Respondent seeking to recover damages for industrial deafness which he claimed had been caused by the negligence, or breach of statutory duty, of the Respondent. Those questions were:

1. whether his Honour erred in holding that "it (could not) be said in any real sense that, as at 31 August 1990, the (Appellant) was 'unaware of the connection between the personal injury and the (Respondent's) act or omission' within the meaning of s60I(1)(a)(iii) of the Limitation Act of 1969" and;

2. whether his Honour erred in holding that, even if it be otherwise, "it (was not) either just or reasonable to make an order extending the time,"

The evidence as to the facts which gave rise to the application with which O'Reilly DCJ, both in the affidavits which were sworn in support of the application, and in the oral evidence given by the Appellant on the hearing before his Honour, was, to say the least, singularly sparse and lacking in detail. The record which I set out below is, accordingly, the best I can do with some singularly unpromising material.