CSR LTD v RENDELL and ANOR; NSW SUGAR MILLING CO-OP LTD v RENDELL [1996] NSWCA 133

CSR LTD v RENDELL NSW SUGAR MILLING CO-OP LTD v RENDELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and COLE JJA 3 June, 7 August 1996

[1996] NSWCA 133

Damages — Certainty — Extension of time.

Limitations of actions — Limitation Act 1969 s60G, s60I — Whether extension just and reasonable — Plaintiff's knowledge — Intervening causes — Assessment of damages uncertainty.

The plaintiff worked for the first defendant from January 1976 to August 1978 and for the second defendant between August 1978 and June 1982 and claimed damages for industrial deafness resulting from those employments. The plaintiff's possible causes of action against the first defendant became prima facie statute-barred in August 1984 and against the second in June 1988. The plaintiff began proceedings and applied for extensions of time on 30 August 1993. The plaintiff had audiograms in 1979 and 1989 noting hearing loss and as early as 1982 had noted hearing difficulties. He had consulted doctors and made enquiries as to making a claim in 1987, had suffered from tinnitus from firing a shotgun in 1987, possibly participated in gun clubs, played in bands, and had other industrial exposure. On 5 February 1996 the trial judge, applying Dedousis v The Water Board (1994) 181 CLR 171, found that the plaintiff had satisfied the pre-conditions for extending time under s60I(1)(a)(ii) and s60I(1)(a)(iii) of the Act and extended the limitation period for the plaintiff's causes of action. The defendants sought leave to appeal and the parties agreed to treat the hearing of the summonses as the hearing of the appeals should leave be granted.

HELD, granting leave and allowing the appeals: (1) Despite some evidence indicating the plaintiff's knowledge of the extent of his hearing loss, the trial judge's decision that the case fell within s60I(1)(a)(ii) and s60I(1)(a)(iii) of the Limitation Act 1969 should not be disturbed; (2) Where some real loss has been proved, difficulties in quantifying loss do not deprive a plaintiff of his right to damages and where the proceedings are brought as of right the Court is bound to do the best it can; (3) However, given the plaintiff's knowledge at earlier periods when his hearing could have been tested, the absence of the 1979 audiogram, and the numerous intervening causes, quantification would be speculative and uncertain; (4) Under s60G(2) it would not be just or reasonable to extend time against either defendant: Harris v Commercial Minerals Ltd (1996) 70 ALJR 425 and Drayton Coal Pty Ltd v Drain (unrep, CA 22/8/95) applied.