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. The facts which gave rise to the proceedings which were commenced in the District Court in May 1988 and to the later application, made within those proceedings, which was later dealt with by PJ Phelan DCJ may be shortly stated. They are as follows. At all relevant times prior to Ist July 1986, Dowell carried on (inter alia) a business - which it appears to have described as its "architectural business" - of a manufacturer and supplier of what, in this day and age, are commonly referred to as "curtain walls" and as a manufacturer and supplier of aluminium frames for windows to be installed in domestic buildings. Ms Page commenced employment with Dowell on 27 August 1973 as a process worker, her classification, for the purposes of the Federal Metal Industry Award, being that of a second class machinist - her duties as a process worker appear to have involved the milling of aluminium extrusions, the assembly of aluminium extrusions, which had previously been milled, so as to form window 2 UNREPORTED JUDGMENTS frames, and a number of associated tasks. In the course of performing her duties, Ms Page was, from time to time, required to use various types of equipment and machinery such as milling machines, drilling machines, air powered screwdrivers and the like. For some 4 or 5 years after she commenced employment with Dowell, Ms Page worked in that part of the business which was concerned with the assembly of domestic window frames, but, as from about 1978, and until 30th June 1986 when her employment with Dowell was terminated in the circumstances to which I will shortly refer, she worked in the "architectural division". Between August 1973 and 1985 - the relevance of which later date will shortly appear - Ms Page started to suffer pain and discomfort in each of her right and left wrists. However, although her symptoms gradually worsened they had not. by November 1985, caused her to lose any time off work. In November 1985, Ms Page was injured in a motor accident while driving her motor car in The Kingsway at Miranda. Although, at first, it appeared that Ms. Page had not suffered any fractures as the result of the accident, it was later ascertained that she had suffered a fractured radius in her right arm, the arm later being placed in plaster for a time. The accident would appear to have occurred while Ms Page was on her way home from work as it is said that as the result of her injuries, she was paid workers compensation by Royal Insurance Co Ltd, Dowell's then workers compensation insurer. It seems to be tolerably plain that, by no later than 8 January 1986, Ms Page had instructed her present solicitors with a view to commencing proceedings against She driver of the other motor vehicle which was involved in the collision to recover damages in respect of the injuries which she had sustained in the accident. Although, in the affidavit which he swore in support of the application made by Ms Page in the District Court, Mr Magee, a clerk in the employ of her present solicitors was to assert that, at the time, Ms Page advised him that her employer's name was "Pilkington ACI Operations Pty Ltd', the written note of his instructions which he took at the time (Appeal Book at 71) makes it clear, as also does the letter which he was to write later on behalf of Ms Page (Appeal Book at 73), that Ms Page instructed him that the name of her employer was "Dowell Australia Ltd". In the letter to which I have just referred, Mr Magee sought from Dowell information (inter alia) as to the date on which Ms Page commenced her employ with Dowell, the capacity in which she was employed, details of her weekly wage, and details as to Ms Page's absence from work as the result of the injuries received in the collision, which details were provided by Dowell in a letter dated 4 March 1986 (Appeal Book at 74). Although it is not entirely clear that this was so, it seems that, after she had returned to work following the motor vehicle accident, Ms Page suffered increasing difficulty with, in particular, her right hand and wrist, as the result of which she consulted a Dr Ayres, who had treated her following the accident, and who, after examining both her arms on this occasion, advised her that her work was causing damage to her wrists. It would further seem that, having received this advice, Ms Page sought to claim workers compensation, and that after that claim had been made, Royal Insurance Co Ltd had Ms Page examined by a Dr Innes-Brown. At his request a Dr Mackey conducted electrical conduction tests, the results of which tests suggested that Ms Page was suffering from bilateral carpal tunnel syndrome. URJ DOWELL AUSTRALIA PTY LTD v PAGE (Powell JA) 3 Meantime, in about June 1986, Dowell had agreed to sell "the architectural business" to Pilkington, the sale to be effective as from 1 July 1986. That arrangement having been made, Dowell, in about June 1986, delivered to each of its employees, including Ms Page, a circular which was in the following terms 5 (Appeal Book at 36): "ANNOUNCEMENT TO EMPLOYEES Earlier this year Dowell was approached by Pilkington ACI with a view to purchasing the Architectural business. Pilkington ACI is Australia's only flat 10 glass manufacturer and is a joint venture between ACI International Ltd and Pilkington Brothers UK. Despite the past and continuing success of our Architectural operations, the Board of Directors has decided that the long term - future of the employees and the business would be best served as part of the Pilkington ACI group and, hence 15 the business has been sold. The sale is effective from Ist July, 1986, and all employees will be continuing their employment with Pilkington ACI as the owner instead of Dowell. The business will continue to operate in its existing form, trading as a Division of Pilkington ACI and under the capable leadership of your existing management. All employees will continue their employment on terms and conditions no less favourable than those they presently enjoy. Your accrued entitlements to long service leave, sick pay, holiday pay, will be assumed by the new owner. Employees who are members of a company superannuation fund will be offered 25 the opportunity to transfer to a Pilkington ACI superannuation fund offering similar benefits to your current scheme. Your accrued entitlements will be transfered to a Pilkington ACI fund. On behalf of the Directors, I would like to extend our thanks for the excellent service you have given the company and feel sure that the new association with Pilkington ACI has created a unique opportunity for the future growth and prosperity of the enlarged Pilkington ACI group. The Anodising business has not been sold and will continue to operate at its present location. (Sgd) (Sgd) Frank Williams John L Paterson Chief Executive, Managing Director, Dowell Australia Ltd Pilkington ACI Ltd" In late July 1986, Dr Innes-Brown advised Ms Page that she required operative treatment in order to ameliorate her condition, following which, on about 24th July 1986, Ms Page ceased work. On 30th July 1986 Ms Page filled in a claim form for employees' workers compensation, the claim form - which had 45 apparently been printed for QBE Insurance Co Ltd, which was Pilkington's workers compensation insurer - being addressed to "Pilkington ACI". The following aspects of that claim form might be noted: 1. the "injury details" were recorded as being "left and right carpal tunnel", the cause of the injury being described as being "due to the repetitive nature of the 50 job and the type of hand tools used over the past 12 years have put a strain on my wrists"; 4 UNREPORTED JUDGMENTS 2. when answering a question as to whether she had earlier claimed workers compensation, Ms Page recorded the name of her earlier employer as "Dowell Australia Ltd" and the name of Dowell's workers compensation insurer as "Royal Insurance Aust. Ltd". In late August 1986, at the President Private Hospital, Kogarah, Dr Innes- Brown perFormed a carpal tunnel decompression on Ms Page's arms. Thereafter, following a period of recuperation, Ms Page resumed work in early 1986. It seems tolerably plain (Appeal Book at 8-9) that, during the period July to November 1986, payments of weekly compensation and medical expenses were made to, or on behalf of, Ms Page by Pilkington's workers compensation insurer. It would seem that, in about March 1987, Pilkington moved "the architectural business" from the premises at 7-11 Parraweena Rd, Caringbah where it had been formerly located to other premises at Chipping Norton. Whether, as Ms Page seems to suggest, she was retrenched at the time, or the fact was that she was unwilling, or unable, to travel from her home in Engadine to Chipping Norton, it is clear that, at this time, Ms Page's employment by Pilkington was terminated. Thereafter, on 30th April 1987, the Manager (NSW) Curtain Wall and Windows Division of Pilkington ACI provided to Ms Page a reference (Appeal Book p.30) which was in the following terms: "TO WHOM IT MAY CONCERN Mrs Wendy Page has been employed by our company for the past 14 years. During this time, we have found her to be very reliable, trustworthy and very conscientious in carrying out her duties. It is unfortunate that owing to our premises being relocated at Chipping Norton, we are losing the expertise which she had gained over the past 14 years. We take this opportunity in thanking for her for her service and wish her every success with her future." In about August 1987, Ms Page commenced employment with an organisation known as Timalco Pty Ltd at premises at Kurnell - although neither the nature of Timalco's business, nor the nature of Ms Page's position is revealed by the evidence, the name of the company would suggest that it was in some way concerned with fabricating aluminium, in which event Ms Page's position would, more likely than not, have been that of a process worker or machinist. In his oral evidence on the hearing of the application (cf the affidavit which he swore in support of the application, Appeal Book at 28) Mr Magee said (Appeal Book at 55; see also Appeal Book at 85) that it was on or about 21st August 1987 when Ms Page instructed him to commence "these proceedings, being the RSI claim', at which time she instructed him that she was employed by Pilkington when her employment was terminated in about April 1987. Mr Magee also said (Appeal Book at 56-59) that, at the time when he was given those instructions, he was familiar with the correspondence which had passed between the firm by which he was employed and Dowell in 1986 and, as well, the announcement which had been circulated to Dowell's employees in about June 1986 concerning the sale of "the architectural business". Mr Magee also said that, at the time when he delivered a brief to counsel to draft, or to settle, the Statement of Claim which was later filed in the District Court, "(he) would have briefed (counsel) with everything (he) had", including the announcement to Dowell's employees. As [have previously indicated, the Statement of Claim was filed in the District Court on 12th May 1988. Although it is not necessary to record in detail the contents of the Statement of Claim, the following aspects of it might be noted: URJ DOWELL AUSTRALIA PTY LTD v PAGE (Powell JA) 5 1. in it, Ms Page asserted that she had been employed by Pilkington from 27th August 1973 until 13th April 1987; 2. the particulars of injury which were contained in it were: a. injury to the right hand; b. injury to the left hand; c. bilateral carpal tunnel syndrome; 3. the particulars of negligence assigned 18 respects in which, so it was alleged, Pilkington had failed adequately to protect Ms Page against the risk of injury. Before passing on, it is to be noted that, as at 12th May 1988 - at which time it was open to Ms Page, without leave, to commence proceeding against Dowell seeking to recover damages for any injury which she had sustained while in its employ after 12th May 1982 - the following matters were clearly known to both Ms Page and Mr Magee: 1. the identity of Ms Page's employer prior to, and after, 1 st July 1986; 2. the fact that, while she was in the employ of Dowell, Ms Page had sustained injury to both her left and right hands, wrist and forearms; 3. the nature and extent of the injury in each case, and that it required surgical intervention to remedy, or ameliorate, Ms Page's condition; and 4. that the injury was said to have been due to the nature of the duties which Ms Page was called upon to perform, and Dowell's failure, in the various respects assigned in the Statement of Claim, adequately to protect Ms Page against the possibility of injury. In its Defence, which appears to have been filed on or about 7th March 1991, Pilkington expressly denied that it employed Ms Page prior to Ist July 1986, which assertion appears to have been repeated in a letter written by Pilkington's solicitors to Ms Page's solicitors on or about 24 July 1991 (Appeal Book at 89). In the particulars pursuant to Ptl2 R4a which were filed on behalf of Ms Page on 17 July 1991, the "place of injury" was recorded as having been "Dowell Australia Ltd, 7-11 Parraweena Rd, Caringbah". It would appear (Appeal Book at 89) that counsel who had drafted the Statement of Claim was made aware of Pilkington's assertion that it did not employ Ms Page prior to | July 1986 at some time in early October 1991, but that, this notwithstanding, it was not until 16 December 1991 when counsel requested a conference with Ms Page. That conference was in fact held, but the date on which it was held is not apparent from the material in the Appeal Book. It is not without point to note, at this stage, that, even in December 1991, it would still have been open to Ms Page, without leave, to commence proceedings seeking to recover from Dowell damages for the injury which she claims she sustained as the result of its negligence. This notwithstanding, Ms Page's advisers do not seem to have been affected by any sense of urgency, for it appears that it was not until about 31st August 1992 when an application was made to the Australian Securities Commission for a search of the records relating to Dowell and Pilkington, pursuant to which application Certificates of Registration which made it clear that each of Dowell and Pilkington was a distinct corporate entity issued in early September 1992. Meantime, in August 1992, Pilkington had filed a Third Party Notice claiming as against Dowell a complete indemnity in respect of any verdict which Ms Page might recover against Pilkington for contribution to any such verdict. To that Third Party Notice, Dowell in December 1992, filed a Notice of Grounds of Defence putting in issue the material paragraphs in the Third Party Notice. Still no sense of urgency appears to have affected Ms Page's advisers, for the original Notice of Motion, which commenced the application dealt with by PJ Phelan DCJ, was not filed in the District Court until 30th June 1993. The Amended Notice of Motion upon which the application finally proceeded was not 6 UNREPORTED JUDGMENTS filed until 22nd September 1993. In that Notice of Motion, in addition to the orders to which I have earlier referred, Ms Page sought the following Order: "3. Pursuant to Ptl7 R3 of the District Court Rules, the plaintiff be granted leave to amend the Statement of Claim so that the defendant is named as 'Dowell Australia Ltd' (sic)." The application came on for hearing before PJ Phelan DCJ on 21st April 1994 - that is, in the period after this Court had delivered its Judgment in Dedousis v The Water Board and before the High Court had delivered its Judgment! on the appeal to that Court from this Court. This fact notwithstanding, and notwithstanding that, in the course of his Judgment, PJ Phelan DCJ referred to both s60F of the Limitation Act 1969 and the decision of this Court in Electricity Commission (NSW) v Plumb2, Ms Page was, in fact, at no disadvantage, since his Honour found that Ms Page was suffering from a latent injury so that the provisions of s60F of the Limitation Act 1969 did not bar her application. The basis of his Honour so finding is to be found in the following paragraph in his Judgment (Appeal Book at 90): "Contrary to the submission of Mr Raine, for the defendant, I do find that the injuries sustained by the plaintiff are of a latent type in the sense that they conceivably commenced back with repetitive activity possibly as early as 1973. I accept the plaintiff's evidence which gives a picture of minor early discomfort in the early years, of growing gradual intensity in the symptomatology leading to the bracelet application in or about 1984. It was the motor vehicle accident in late 1985 that aggravated that symptomatology. It is in my view only in mid 1986 that she realised the true nature and extent of her injury." It was on the basis of that finding, of his view - the basis for which is not elaborated upon - that the limitation period ended, not in 1992, but 6 years after the commencement of Ms Page's employment by Dowell, and of his finding "that it (was) only in June 1992 that (Ms Page) appreciated the notion of the two different entities of her successive employers", that his Honour then proceeded to consider whether it was just and reasonable to grant to Ms Page, pursuant to the provisions of s60G of the Limitation Act 1969, the leave which she sought. The reasons which led his Honour to conclude that question in favour of Ms Page included the following (Appeal Book at 92): "4) I find as in his Honour Dawson J's frame of reference in Docama (sic) v Ford Excavation Pty Ltd 1984 ALR at 288 and 289, the plaintiff to have done all she could have reasonably have done on the knowledge that was available to her, which knowledge was not assisted by the documents given to her by the defendant and Dowell. I further find that s60(1) of the 1969 amendment is of application to the plaintiff, particularly s60(1)(a)(iii). it seems axiomatic to me that one cannot be aware of any defendant's act or omission if one is ignorant of the defendant itself." Having recorded his reasons for his conclusion that leave ought to be granted, PJ Phelan DCJ then turned to deal with Ms Page's application to amend the Statement of Claim, which application he dealt with in the following way (Appeal Book at 92): "Given the above findings, it becomes perhaps academic to examine the submissions re the District Court Act Pt!7 R4. However, I doubt that it has the width of scope attributed to it by Mr Thompson, counsel for the plaintiff, as against Dowell. In short, here I accept Mr Pritchard's submission. It is not simply a matter of intention of the parties suing, with respect, the party to 1. (1994) 181 CLR 171. 2. (1992) 27 NSWLR 364. URJ DOWELL AUSTRALIA PTY LTD v PAGE (Powell JA) 7 be sued. It is in my view not merely a case of wrong description. The words of his Honour McHugh J in Bridge Shipping Pty Ltd v Grand Shipping SA and Anor 103 ALR 607 at 628 would seem to be to the point." At the conclusion of his reasons, his Honour then made Orders granting Ms Page leave to commence proceedings against Dowell and - for reasons which escape me, since the proceedings against Pilkington had been commenced within time - Orders granting Ms Page leave to commence proceedings against Pilkington, but declined to make the Order for amendment which had been sought. Thereafter, Dowell filed a Summons for leave to appeal from his Honour's Judgment. Since, by that time, the High Court had given special leave to appeal against the Judgment of this Court in Dedousis v The Water Board that Summons together with a number of other like summonses was placed in a special list to be dealt with after the High Court had delivered its Judgment in the appeal in Dedousis v The Water Board. The present is one of 14 applications in that special list which were listed to be dealt with by this Court in the week commencing 23rd October 1995. Despite the fact that, as I have just recorded, PJ Phelan DCJ had refused to make the Order for amendment which had been sought in Ms Page's Amended Notice of Motion, no application was then, or at any time until after the conclusion of the hearing of the Summons for leave to appeal which had been filed by Dowell, made to seek to obtain leave to appeal from the decision of his Honour in this respect. However, after the conclusion of the hearing of the appeal and under the guise of supplying further Written Submissions, leave to provide which was given by the Court at the conclusion of the hearing (Transcript at 15), counsel for Ms Page had delivered to the Court a form of Notice of Motion seeking Orders, first extending the time "for seeking leave to cross-appeal", and, second, for leave to cross-appeal in respect of his Honour's order, in this respect, a form of Affidavit sworn by his instructing solicitor intended to support that Notice of Motion and Written Submissions, first,as to why leave should be granted, and, then, in support of the contention that, in refusing to make the Order sought, his Honour had erred. Those documents having been drawn to the attention of the members of the Court who heard the appeal, the Registrar was then instructed to advise counsel for both the parties: 1. that the proposed Notice of Motion and the other documents were not within the leave which had been reserved by the Court and would not be considered by the Court which had heard Dowell's application for leave to appeal; 2. that, if Ms Page wished now to apply for leave to appeal out of time it was open to her to do so in the ordinary way; and 3. that the members of the Court which heard Dowell's application for leave to appeal proposed to deal with that application on the basis of the material in the Appeal. Book, the Written Submissions originally prepared, the oral submissions advanced on the hearing of the application and any further Written Submissions, within the leave granted, which were received within the time which had been limited. No further Written Submission have since been received. With great respect to his Honour it seems to me that PJ Phelan DCJ's Orders cannot stand. It will be apparent from what I have earlier written (at 12-13) above that fundamental to his conclusion that it was just and reasonable to grant Ms Page, pursuant to the provisions of s60G of the Limitation Act 1969, the leave which 8 UNREPORTED JUDGMENTS she sought, was his finding, first, that the limitation period ended, not in 1992, but 6 years after the commencement of Ms Page's employment by Dowell; and, second, "that it (was) only in June 1992 that (Ms Page) appreciated the notion of the two different entities of her successive employers", it following, in his Honour's view, that Ms Page was not, at the expiration of the relevant limitation period, aware of the connection between her injury and Dowell's acts or omissions. His Honour's view which, although not elaborated upon, seems to have been based on the propositions, first, that Ms Page had only one cause of action; and, second, that the limitation period in respect of that cause of action commenced as from the date of first exposure to the risk of injury, does not, in a case such as this, represent the law. On the contrary, in cases where it is alleged that, as the result of continuing negligence on the part of an employer, the health and well-being of an employee progressively deteriorates, a new cause of action will accrue from time to time as the worker suffers further not insignificant damage to his or her health or well-being (see, for example, Clarkson v Modern Foundries Ltd3; Cartledge v E Jobling and Sons Ltd; Berry v Stone Manganese and Marine Ltd5; John Lysaght Aust. Ltd v Butfield®; Commercial Minerals Pty Ltd v Hollins and Ors?; Colorado v Haden Engineering Pty Ltd8; Markarian v Woolworths Ltd?; Clerk and Lindsell on Torts!°; McGee: Limitations Periods!!) As it appears from what I have written above that it was not until some time around June 1986 when Ms Page lost any time off work because of her condition, it would seem tolerably plain that the limitation period in respect of any common law claim which Ms Page might seek to bring to recover damages for the injury which she had suffered, for which she needed operative treatment, and in respect of which she was obliged to take time off work, would not have expired until about June 1992. As what I have earlier written (at 9-10 (above)) makes clear, long before June 1992, the following matters were clearly known to both Ms Page and Mr Magee: 1. the identity of Ms Page's employer prior to, and after, 1 July 1986; 2. the fact that, while she was in the employ of Dowell, Ms Page had sustained injury to both her left and right hands, wrist and forearms; 3. the nature and extent of the injury in each case, and that it required surgical intervention to remedy, or ameliorate, Ms Page's condition; and 4. that the injury was said to have been due to the nature of the duties which Ms Page was called upon to perform, and to Dowell's failure, in the various respects assigned in the Statement of Claim filed in May 1988, adequately to protect Ms Page against the possibility of injury. This being so, it cannot, in my view, be said that either at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted that Ms Page did not know, or was unaware of, the matters referred to in s601(1)(a) of the Limitation Act 1969 - PJ [1957] 1 WLR 1210. [1962] 1 QB 189. [1972] 1 Lloyd's Rep 182. Court of Appeal 8 December 1993 (as yet unreported). Court of Appeal 22 December 1993 (as yet unreported). Court of Appeal 6 November 1995 (as yet unreported). Court of Appeal 7 November 1995 (as yet unreported). 14 Ed (1975) 338-340. 2 Ed (1994) 150-1. FSC PANAMA YW URJ DOWELL AUSTRALIA PTY LTD v PAGE (Young AJA) 9 Phelan DCJ's finding "That it (was)only in June 1992 that (Ms Page) appreciated the notion of the two different entities of her successive employers", in my view, cannot stand in the face of the uncontested facts to which I have referred above. For these reasons I would propose the following Orders: 1. ORDER that leave be, and be deemed to have been, granted to the Claimant, to appeal against the Orders made by PJ Phelan DCJ on 22nd April 1994. 2. ORDER that the Appeal be upheld; 3 ORDER that the Orders made by PJ Phelan DCJ on 22nd April 1994 be set aside, and that, in lieu thereof, it be ordered that the Amended Notice of Motion dated 22nd September 1993 be dismissed. 4. ORDER that the First Opponent pay the Claimant's costs of the Appeal and of the Notice of Motion. 5. ORDER that the First Opponent have a Certificate under the provisions of the Suitors Fund Act 1959. Young AJA This is an application for leave to appeal from a decision of Peter Phelan DCJ given on 21 April 1994. The application for leave to appeal was placed in a list of cases raising various points under the Limitation Act which were listed in the week commencing 23 October 1995. I agree with the other members of the Court that this is a proper case in which leave to appeal should be granted. However I regret to say that contrary to the views of my brothers, I would dismiss the appeal. The facts are fully set out in the judgment of Powell, JA and there is no need for me to repeat them. S60I of the Limitation Act 1969, provides that the Court is not to make an order extending a limitation period under the relevant part of the Statute unless at the expiration of the relevant limitation period, or at a time before that expiration when proceedings might reasonably have been instituted, the plaintiff did not know that personal injury had been suffered, or was unaware of the nature or extent of that injury, or was unaware of the connection between the personal injury and the defendant's act or omission. I agree with Powell, JA for the reasons which his Honour has given that the limitation period would not have expired until about June 1992. The question then is whether, at or about that date, is the Court satisfied that the plaintiff was unaware of the connection between her injury and the defendant? S60I(1)(a)(iii) speaks of the plaintiff's unawareness of the defendant's act or omission rather than the defendant's identity, but I respectfully agree with PJ Phelan DCJ, that one cannot know about the connection if one is ignorant of the defendant itself. Was then the plaintiff unaware of the defendant's identity before the relevant date? There is material in the appeal papers which might indicate that the plaintiff had such awareness. This material included claims filled out by Ms Page for workers compensation in July, 1986. However, the learned trial judge in my view, taking this and other material into account, found the facts differently. Before the learned Judge was an affidavit by Ms Page that it was not until 31 August 1992 that she was informed by her solicitor that Dowell Australia Pty Ltd and Pilkington ACI Operations Pty Ltd were separate legal entities. She was cross examined on that affidavit and at 47-48 of the Appeal Book, was asked what she understood by a takeover, and what she understood by the expression "separate legal entities". 10 UNREPORTED JUDGMENTS At the top of Appeal Book 48, the following appears: "Q. And you were aware, weren't you, in June of 1986, that Pilkington Australia Ltd and Dowell - I'm sorry, Miss Page would you like a glass of water? A. No, ['m right. Q. Miss Page, you were aware in June 1986, weren't you, that Pilkington ACI and Dowell Australia were separate legal entities, weren't you? A. Yes. Q. I'm sorry? A. Yes. The flavour of this exchange is that the plaintiff did not appear to be completely composed and that the cross examiner was surprised by the answer he got which surmise is reinforced by the fact that he promptly sat down. Mr Michael McGee, the clerk of MB Page's solicitors handling the matter gave evidence at 58 of the Appeal Book. Unfortunately, a section of his evidence is lost-because of a fault in the recording equipment. His Honour's finding at 91 that "It is only in June 1992 that she appreciates the notion of the two different entities of her successive employers" would appear to be based in part on the lost material. The learned Judge set out a chronology of events in his judgment which included noting that Ms Page had made a compensation claim in 1986 naming Pilkington as her employer. His Honour further noted on 27 January, 1987 Ms Page had signed a statement which was probably prepared by an insurance investigator in which she stated she was employed by Pilkington, but had originally been employed by Dowell. Although his Honour does not refer to these documents again, his reasons carry the flavour that Ms Page might well sign statements or claim forms without appreciating their significance as she was a simple woman not versed in legal subtleties. The learned District Court Judge said at Appeal Book 89-90, "The presence of the plaintiff and Mr McGee was sought for cross examination. I found both to be honest witnesses endeavouring to be truthful in their evidence before the Court. Specifically with respect to the plaintiff, I find that whereas her evidence is contradictory at times with respect to her knowledge of the legal entity of the employer, this only corroborates my finding that she never did appreciate the notion of separate legal entities. Therefore, some of her answers given to Mr Pritchard, counsel for Dowell, in his cross examination are not the clinches that they might seem to be at first glance. As her affidavit testifies, I accept that subjectively she considered that all that had happened was that her employer had changed its name. "There are many reasons why she could come to that conclusion. The first is, and I mean no disrespect to the plaintiff, she is a simple woman in the non-perjorative sense of that word. She is not versed in legal subtleties." His Honour then mentions a reference which Ms Page was given by Pilkington in April 1987 referring to the fact that Ms Page "had been employed by our Company for the past 14 years." His Honour then said that the Announcement of June 1986 which is set out in full in Powell JA's reasons "is in my view by no means an unambiguous document for its lay readers." His Honour then concludes this part of his reasons by adding, "Further, she was entitled to rely upon the legal advisors instructed by her to whom at appropriate times she had given relevant information and correspondence." URJ DOWELL AUSTRALIA PTY LTD v PAGE (Young AJA) 11 A further question that concerns me is the meaning of the word "unaware". There is no doubt that had Ms Page been a trained lawyer, or experienced person in commerce, the significance of the different legal personalities of Dowell Australia Pty Ltd and Pilkington ACI Operations Pty Ltd, would have been instantly apparent to her. However, she was not such a skilled person: she was what might be described as an ordinary unskilled employee in a factory. Does the word "unaware" mean that a person does not know the facts, or does it mean that she does not know the facts and the legal effect of those facts? The word "aware" often has the connotation of someone having actual knowledge, not only of the relevant facts, but also of the relevant obligation which accompanied those facts. So that in Deming No 456 Pty Ltd v Brisbane Unit Development Corp Pty Ltd (1983) 155 CLR 129,-150, three Justices of the High Court said, "A person would not ordinarily be said to become aware of a 'failure' to give a statement... until he becomes aware both of the obligation to give such a statement and of the fact that it has not been given." I do not consider that this position is contrary to anything that was said by the Justices of the High Court in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234. In the instant case, the learned trial Judge found, and was entitled to find, that although objectively she had information which would indicate there had been a change in the legal persona of her employer, "Subjectively she considered that all that had happened was that her employer had changed its name." She remained in this state of unawareness until June-August 1992. It has been put that the knowledge of the solicitors well before July 1992 was knowledge that should be imputed to Ms Page. I do not consider this is so. S60I(1)(b) uses the expression "3 years after the plaintiff became aware (or ought to have become aware) of all three matters "ought to be aware" does not appear in (a), and accordingly, it would seem to me that the legislature in (a) meant actual awareness by the person herself. An argument was put that s11(2) of the Limitation Act tells against this, but it does not seem to me that it covers the situation at all. I should note that because this matter is dealt with under Schedule 5 to the Limitation Act, s60I(1)(b) does not apply because an alternative period of three years from 1 April 1990 is allowed in which the Court may make an order under s60G or s60H. The provision in the Schedule has been interpreted as meaning that if a-notice of motion is filed within that period, then it is competent. The notice of motion in the instant case was filed on 30 June 1993. I do not believe that it matters whether Ms Page may have only found out about the fact that there were two different legal entities in June 1992 as held by the learned Judge, or in August 1992, which would appear to be the case from her affidavit which the learned Judge accepted. S60I(1)(a) speaks of the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted. This must mean that one either finds that the plaintiff did not know at the expiration of the period, or alternatively, the matter came to her attention so close to the end of the limitation period that proceedings could not reasonably have been instituted before the period expired. If the plaintiff only found out in June 1992, and the limitation period expired in July 1992, I would have thought that the second part of the phrase used by the legislature was applicable. If I had any real doubt about this matter, then it would have been necessary to send the matter back to the learned trial Judge for him to reconsider it. 12 UNREPORTED JUDGMENTS Accordingly, despite the fact that I consider the learned Judge fell into some error, it seems to me that basically his findings of fact mean that the plaintiff was entitled to succeed before him and the appeal should be dismissed. 1. ORDER that leave be, and be deemed to have been, granted to the Claimant, to appeal against the Orders made by PJ Phelan DCJ on 22nd April 1994. 2. ORDER that the Appeal be upheld; 3 ORDER that the Orders made by PJ Phelan DCJ on 22nd April 1994 be set aside, and that, in lieu thereof, it be ordered that the Amended Notice of Motion dated 22nd September 1993 be dismissed. 4. ORDER that the First Opponent pay the Claimant's costs of the Appeal and of the Notice of Motion. 5. ORDER that the First Opponent have a Certificate under the provisions of the Suitors Fund Act 1959. Counsel for the Claimant/Appellant: DR Russell Counsel for the 1 Opponent/1 Respondent: M Thompson Counsel for the 2 Opponent/2 Respondent: S Campbell (submitting) Solicitors for the Claimant/Appellant: Moray and Agnew Solicitors for the 1 Opponent/1 Respondent: Maurice May and Co Solicitors for the 2 Opponent/2 Respondent: Curwood Partners