DOWELL AUSTRALIA PTY LTD v PAGE [1995] NSWCA 129

DOWELL AUSTRALIA PTY LTD v PAGE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, POWELL JJA and YOUNG AJA 24 October 1995, 1 December 1995

[1995] NSWCA 129

Limitation of Actions — Extension of time — When limitation period commences to run — Continuing negligence — Relevant period of limitation — Whether plaintiff unaware of connection between injury and defendant's acts or omissions.

Clarke JA I agree with Powell J's conclusion that the appeal should be allowed for the reason that Phelan DCJ's conclusion that at the relevant times the respondent was unaware of the identity of her employer was erroneous.

In my opinion the evidence failed to establish that at the time of the expiration of the limitation periods which applied to the causes of action on which the respondent relied she was unaware of the connection between her injury and the acts and omissions of her employer.

I agree with the orders proposed.

Powell JA In this matter, the Claimant, Dowell Australia Pty Ltd ("Dowell"),seeks, first, an order that it have leave to appeal from orders made by PJ Phelan DCJ on 22 April 1994, by which orders his Honour, relevantly, granted to the First Opponent ("Ms Page'') pursuant to the provisions of the Limitation Act 1969 ("the Act") leave to commence proceedings against Dowell; and, second, ordered that Dowell be added as a second party defendant to proceedings which, in May 1988, Ms Page had commenced in the District Court seeking against the Second Opponent, Pilkington ACI Operations Pty Ltd ("Pilkington") damages in respect of an injury, or injuries, which Ms Page claimed to have suffered as the result of what she alleged was Pilkington's negligence in failing to provide for her a safe system of work during the time when she was employed by it. In the event that the leave sought by it be ranted, Dowell seeks, in addition, orders that the appeal be upheld, that the orders made by PJ Phelan DCJ be set aside, and that Ms Page pay its costs of both this application and the application which she had made in the District Court.