COLORADO v HADEN ENGINEERING PTY LTD and ANOR [1995] NSWCA 85

COLORADO v HADEN ENGINEERING PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and POWELL JJA 25 October 1995, 6 November 1995 [1995] NSWCA 85

LIMITATION OF ACTIONS — PERSONAL INJURY — PRINCIPLE OF FINALITY IN INTERLOCUTORY APPLICATIONS — MISCARRIAGE OF JUSTICE — LIMITATION ACT 1969 (NSW) s60F, s60I

FACTS

The claimant was a boilermaker who had worked for the first opponent for 9 years between 1975 and May 1984 and between 21 February 1985 and 30 August 1985. He had also worked for the second opponent between May 1984 and 21 February 1985. In 1984, he was awarded compensation for partial loss of hearing. In 1990, however, the claimant realised that he had suffered a further loss of hearing. In 1991, the claimant filed an ordinary statement of claim in the District Court of New South Wales seeking damages against the first two opponents.

Held (per Clarke JA; Priestley and Powell JJA concurring)

While a worker is exposed to excessive noise new causes of action accrue from time to time as the worker suffers further not insignificant loss or damage. Upon this basis all possible claims upon the second opponent became statute barred on 21 February 1991 and as against the first opponent on 30 August 1991.

There has been a prima facie miscarriage of justice because the claimant's application had never been properly determined pursuant to the principles set down by the High Court in Dedousis v The Water Board (1993) 181 CLR 171 where the High Court held that a court has to inquire whether the provisions of s60I had been satisfied before a court could make an order in an applicant's favour. If an applicant satisfied the court of the matters set out in s60I then the court has to determine whether it is just and reasonable to order an extension of time. See also Drayton Coal Pty Ltd v Drain (NSW Court of Appeal, 22 August 1995, unreported) where the Chief Justice set down the six propositions established in Dedousis.