New South Wales Supreme Court CITATION : Bayliss v Milperra Marketing P/L & 2 Ors [1999] NSWSC 873 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 21445/96 HEARING DATE(S) : 19 August 1999 JUDGMENT DATE : 31 August 1999 Noel John Bayliss (Plaintiff) Milperra Marketing Pty Limited (First Defendant) PARTIES : Kellyco (NSW) Pty Limited (Second Defendant) Coley Pty Limited (Third Defendant) JUDGMENT OF : Master Harrison Mr B G Gross QC with Mr T Boyd (Plaintiff) COUNSEL : Mr M McDonald (First Defendant) Mr D R Russell (Second & Third Defendants) Mr C Thompson Carroll & O'Dea (Plaintiff) Mr R Oldfield McCulloch Buggy (First Defendant) SOLICITORS : Mr Gibson Gibson Robinson (Second Defendant) Mr Ford Curwood & Partners (Third Defendant) CATCHWORDS : Extenson of limitation period - ss 60G & I Limitation Act ACTS CITED : Limitation Act 1969 (NSW) (as amended) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR, 139 ALR 1 BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA unreported, 7 March 1997) Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 195 CASES CITED : Harris v Commerical Minerals Limited (1995-96) 186 CLR 1 Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) Commonwealth of Australia v McLean (1997) 14 NSWLR 389 Still v Newman [1999] NSWCA 43 DECISION : See para 40 18 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON TUESDAY, 31 AUGUST 1999 21445/96 - NOEL JOHN BAYLISS v MILPERRA MARKETING PTY LIMITED & 2 ORS JUDGMENT (Extension of limitation period - ss 60G and 60I of the Limitation Act) 1 MASTER: By notice of motion filed 2 February 1998 the plaintiff seeks an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (as amended) (the Act). The plaintiff relied on his affidavit sworn 3 June 1998, two affidavits of Wai-On Phoon sworn 10 September 1998 and 19 April 1999, two affidavits of Cameron Lindsay Thompson sworn 18 May 1999 and 27 May 1999 and the affidavit of Mark Joseph Donohoe sworn 15 May 1999. The defendants relied on the affidavit of Jeffrey Scott McGee sworn 9 June 1998 and two affidavits of Julian Lee sworn 14 September 1998. 2 By statement of claim the plaintiff pleads that as a consequence of exposure from 1978 to 1994 to PVC solvent cement and glues manufactured and/or supplied by the defendants he contracted chemical hypersensitivity syndrome. 3 It is alleged that the first defendant manufactured, marketed and sold a PVC solvent and that the second and third defendants marketed and sold different brands of PVC solvents. By paragraph (9) of the statement of claim the plaintiff gives particulars of negligence namely that the defendants failed to give the plaintiff any or any adequate warning that fumes from the industrial glues were dangerous to humans and any or any adequate warning that the plaintiff should avoid exposure to fumes from the industrial glues and could do so by the use of masks. 4 I carefully observed the plaintiff giving evidence and being cross examined. I formed the view that he was giving truthful evidence and I accept it. For the purposes of this application I find the following facts. (1) The plaintiff was born on 17 July 1934 and is now 65 years of age. He married on 15 April 1954 and has two children. Since 1980 the plaintiff has resided at Hallidays Point. (2) The plaintiff began working as a plumber in about 1957 and in 1961 he obtained his plumbers' licence. He worked in Sydney as a plumber for about 22 years and conducted his own business as a plumber since about 1969. (3) In the early 1960's PVC pipes were introduced but were only used in small quantities for specific purposes such as aboveground piping, kitchens, laundries and bathroom sinks. In or about 1978 the NSW Water Board approved the use of PVC pipes for sewer work. (4) From about 1978 until the plaintiff moved to Hallidays Point he used both PVC pipes and terracotta pipes in his business. The PVC pipes were used for above ground work and the terracotta pipes for underground sewerage connections. Terracotta pipes did not require the use of any glues or chemicals. All that was necessary was to fit the pipes with rubber rings. With PVC pipes it was necessary to use the PVC glue which was provided for that specific purpose. (5) After moving to Hallidays Point in 1980 the plaintiff used PVC pipes exclusively in his plumbing work and used the glue or cement recommended by the manufacturer. These are: "My-T-Bond, White Label, PVC Solvent Cement", Raymor's PVC Solvent Cement" and "Coleman's Plumbing Supplies PVC Solvent Cement" and "My-T-Bond Pink Priming Fluid for PVC Pipe Fittings". The plumbing solvents, glue and primer are used for various purposes such as roughening surfaces to prepare them for joining, cleansing the surfaces and gluing the joints. (6) In about 1978 the plaintiff was suffering from sore muscles and stomach. The plaintiff was referred to Dr Fails a specialist who advised him that his sore muscles were a result of being "too fit" and that his body was telling him to slow down so he should ease up on his work load. Dr Fails thought that the plaintiff had diverticulitis. From about July 1980 for 18 months the plaintiff ceased work as a plumber as he was still experiencing some symptoms. He then resumed working reduced hours. (7) In about 1982 the plaintiff attended Dr Thurlow who referred him to Dr Bernard Lake in Sydney who conducted numerous tests but nothing specific could be found wrong with him. (8) In about 1985 the Department of Public Works provided access to the sewer for Hallidays Point and the plaintiff commenced working long hours connecting houses to the sewerage system. (9) In 1987 the plaintiff began to get severe shooting pains in both arms, sore feet and hands and in his arm muscles and commenced having respiratory problems including chest infections. The plaintiff was admitted to Taree hospital for about one week for investigations. The plaintiff was experiencing palpitations and dizzy spells and he was put on Isopton to treat the palpitations. At this time he thought that the glue caused his symptoms to worsen but he did not understand what the connection was (t 6.10). (10) In April 1991 while at work, the plaintiff experienced a sudden episode of dizziness, rapid heart beat, sweating and blurred vision. At that time it occurred to him that there may have been some connection between his symptoms and the glue which he had been using to join the PVC pipes under a mobile home. He sniffed the glue and in "10 seconds flat" he was as "fit as a fiddle" (t 7.45). It was because of this reaction he started to wear a mask when using glue in confined spaces but never thought that when he used glue "out in the trenches" and the fresh air that it would harm anyone. (11) The plaintiff then contacted Dr Klein and told him of his experience. Dr Klein made enquiries at Newcastle University regarding exotic and chemical diseases and the question of Lyme disease was discussed. The plaintiff then attended Dr Bernie Hudson a specialist in Lyme disease who concluded that he was not suffering from this disease. (12) During 1992 the plaintiff became aware for the first time that labels on the tins of glue had been changed to add a directions to "avoid breathing vapour" and to include details of the chemical, methyl-ethyl ketone. After becoming aware of these directions the plaintiff began wearing a mask at all times. Due to the poor state of his health the plaintiff employed an assistant plumber and told him to be careful using the solvent in a confined space but it "can't hurt you that much". It was then he looked at a can and observed that there was a warning on it. The warning says: "SAFETY DIRECTIONS Irritant - Avoid contact with skin and eyes. Avoid breathing vapour. NOT TO BE TAKEN" This warning did not strengthen the plaintiff's belief that there was a connection between exposure and the symptoms. (13) Between September 1992 and 8 April 1993 the plaintiff was referred to Dr Michael Prowse, Dr Blackie and Dr Christie. They did not link the plaintiff's symptomatology to an organic cause. (14) In December 1993 the plaintiff consulted Dr Joachim Fluhrer at the Sydney Natural Medical Centre at Manly who referred the plaintiff to Newcastle University to undergo testing. In December 1993 Dr Fluhrer told the plaintiff that "its not all in your head" and that the tests revealed an association between his symptoms and exposure to chemicals such as PVC glue. At this stage the plaintiff gave evidence that he did not know for sure it was the solvents that were causing his symptoms. However, the explanation came as a great relief to him because since 1978 no-one had provided him with a cause of his problem. Dr Fluhrer told him that he had suffered permanent damage. (15) Dr Fluhrer referred the plaintiff to the WorkCover Authority for tests and a second opinion. These tests were carried out by Dr Richard Teo. In August 1994 Dr Teo advised the plaintiff that he should not still be on this planet and that there was no treatment that could cure him. Based on what Dr Teo told the plaintiff he had no doubt in his mind that it was the solvents that caused his injury (t 10.50). Dr Teo also told the plaintiff to sue the manufacturers. (16) The plaintiff was treated by Dr Fluhrer once a week for approximately 16 months. Dr Fluhrer referred the plaintiff to Dr Mark Donohoe at Mosman. (17) On 26 October 1994 the plaintiff consulted Dr Donohoe. Dr Donohoe advised the plaintiff to sue and gave him the name of a solicitor, Mr Bill Madden of Blessington Judd. Dr Donohoe told the plaintiff that he had suffered permanent neurological damage. The plaintiff waited six months before consulting a solicitor as Dr Donohoe recommended treatment which the plaintiff hoped would make him well. Dr Donohoe did not tell the plaintiff what he intended to write in his report. However in view of what Dr Teo had previously told him coupled with Dr Donohoe's advice there was no doubt in the plaintiff's mind that the solvents had caused his injuries. (18) In early April 1995 the plaintiff consulted Mr Bill Madden, a solicitor and sought legal advice. (19) Due to illness Dr Donohoe's report was not prepared until 19 May 1995. The report stated that on the balance of probabilities, and with due regard to the history and assessment he was of the opinion that workplace exposure to solvents (principally the methyl-ethyl ketone) over a number of years was the direct cause of his hepatic damage, his neurological abnormalities and his chronic pain syndrome. He was also of the opinion that without such exposure in the workplace the plaintiff would most likely be in good health today. (20) On 20 December 1996 the statement of claim was filed. (21) In August 1996 the plaintiff first became aware that chemical companies which manufacture the solvents supply the details of the chemicals used in the manufacture. They would provide the safety data sheets. The manufacturers should have included on their labels for many years warnings of the chemicals in the solvents. The manufacturers did not pass on to the consumer the details that were provided to them by the chemical companies. A lot of these chemicals which have caused problems have been around for 30 to 40 years. He was told this by Mr Johnny Walker who holds an Associate Diploma of Applied Chemistry from Royal Melbourne Institute of Technology. It was confirmed by Mr Walker in a letter addressed to the plaintiff and dated 26 September 1996 (Ex A). (22) On 26 May 1997 the plaintiff's current solicitors took over carriage of this matter. (23) In October 1997 the statement of claim was served on the defendants. (24) On 2 February 1998 the notice of motion to extend the limitation period was filed. The Law 5 The plaintiff relies on s 60G and s 60I(1)(a)(i), (ii) and (iii) of the Limitation Act 1969 (NSW) (as amended). The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in recent times in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1, BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA unreported, 7 March 1997) and Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 195. The onus rests with the applicant. In addition to the satisfying of the relevant threshold requirements, it must be shown that it is just and reasonable to make an order. Subdivision (3) 6 The procedure provided by this group of provisions is available for causes of action that accrue after 1 September 1990; but "also (by the operation of Schedule 5) for causes of action that accrued before that date" (s 60F). 7 Schedule 5 provides by clause 4(1) that: "Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990…"; 8 and clause 4(4) empowers the court to make an order under s 60G in respect of such a cause of action: "…if an application for such order is made within: (a) the period of three years referred to in s 60I; or (b) the period of three years commencing 1 September 1990." 9 The application to extend time was made on 2 February 1998 which is outside the time stipulated in clause 4(4)(b). The application can only succeed if that date is shown to be "within the period of three years referred to in s 60I". 10 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, "for such a period as it determines". 11 The relevant provisions of s 60I are as follows: "(1) A court may not make an order under s 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered; or (ii) was unaware of the nature or extent of personal injury suffered; or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and (b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 12 Where it is alleged that as a result of continuing negligence by a manufacturer the health and well being of the plaintiff progressively deteriorates, a new cause of action may arise when the plaintiff suffers further not insignificant damage to his health and well being. Leave is required for those causes of action that arose up to December 1993. 13 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that: (1) As at December 1993 (the expiration of the relevant limitation period) he was unaware of one or more of the matters identified in s 60I(1)(a)(i), (ii) or (iii). (2) That he did not become aware of that or those or he ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to him) earlier than 2 February 1995. 14 The practical effect is to require the plaintiff to identify specifically what fact or facts he claims not to have known in December 1993, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I(1)(a); and to show (by evidence) the date on which he acquired knowledge thereof (being a date later than 2 February 1995); or to show that that fact was or those facts were still unknown to him on that date. The defendant did not submit that the plaintiff ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I(1)(b). 15 Counsel indicated that the plaintiff relied on s 60I(1)(a)(i), (ii) and (iii) but conceded that evidence given by the plaintiff during cross examination severely qualifies and undermines his case under s 60I(a)(i) and (ii). (i) Whether the plaintiff has proved that "he did not know that a personal injury had been suffered " 16 In 1978 the plaintiff knew he suffered from sore muscles and a stomach problem. In 1987 the plaintiff began to get severe shooting pains in both arms, sore feet and hands and arm muscles. He began to have respiratory problems including chest infections. He suspected that there was a connection between the glue and his symptoms but did not know what the connection was. In April 1991 the plaintiff still suspected that there was a connection between the vapours of the PVC solvent and the symptoms that he was suffering. He knew that when he sniffed the glue it relieved the sudden onset of an episode of dizziness, rapid heart beat, sweating and blurred vision. In December 1993 Dr Fluhrer told the plaintiff that it was not all in his head and that the tests revealed an association between his symptoms and exposure to glue chemicals such as PVC glue and that he had suffered permanent damage. In August 1994 Dr Teo advised the plaintiff that he should not still be on this planet and that there was no treatment that could cure him. Dr Teo advised the plaintiff to sure the manufacturers. In August 1994 the plaintiff had no doubt in his mind that it was the solvents that caused his injury. This belief was further confirmed when the plaintiff was examined by Dr Donohoe in October 1994. 17 It is my view that by August 1994 at the latest the plaintiff knew that he had suffered a personal injury. The acquisition of this knowledge falls outside the time period stipulated by s 60I(1)(b) and the plaintiff's claim under s 60I(1)(a)(i) fails. (ii) Whether the plaintiff has proved that he was "unaware of the nature or extent of the personal injury suffered " 18 The test of knowledge posed by s 60I(1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I(1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10). However, s 60I (1)(b) imposes an objective test - "became aware (or ought to have become aware)" of all three matters listed in paragraphs (a)(i)-(iii). The defendant did not submit that the plaintiff "ought to have known" the nature and extent of his injuries. 19 The nature and extent of the injury which the plaintiff has sustained is to be determined as at the date of the hearing of the application (Harris ibid pp 13 and 14). A plaintiff may be held to have been aware of the nature or extent of his injury within the relevant period if during that period he was aware of the effect which the injury was then having upon him and of its likely future course, even though he may have been unaware of the precise pathology or medical diagnosis. On the other hand, knowledge of the medical diagnosis will not itself amount to knowledge of the nature and extent of the injury if the plaintiff is unaware of significant aspects of the prognosis, for example that the injury is permanent and will not be amenable to treatment; or that it may deteriorate with the passage of time. As long as the consequences are of a kind that the plaintiff expects, the plaintiff will be aware of the extent of the injury. 20 For the reasons given above, by August 1994 the plaintiff knew that he was suffering from chemical sensitivity which symptoms included sore muscles which felt like he had played football the day before, severe shooting pain in both arms, sore feet and hands, respiratory problems including chest infections, increased heart rate, blurred vision, sweating and dizziness. He knew that the damage he had suffered was permanent. It is appreciated that in October 1994 the plaintiff was optimistic that Dr Donohoe's treatment may make him well but this does not mean that he was not aware that he had suffered permanent damage. It is my view that by August 1994 the plaintiff was aware of the nature and extent of the personal injury he had suffered. The plaintiff acquired this knowledge outside the period stipulated by s 60I(1)(b) and the plaintiff's claim under s 60I(1)(a)(ii) fails. (iii) Whether the plaintiff was unaware of the connection between personal injury and the defendant's act or omission ? 21 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s 60G. Those acts or omissions, will be found in the plaintiff's particulars of negligence. - Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995). 22 The plaintiff submitted that he was unaware of the connection between the personal injury and the defendant's acts or omissions until August 1996 when he was told that the manufacturers should have included a warning label on their PVC solvent containers. The defendants submitted that the plaintiff knew of the warnings on the containers in 1992 and had worn a mask in 1991. 23 In 1992 due to the poor state of his health the plaintiff had to employ a plumber and told him to be careful using the solvent but it "can't hurt you that much". At that time the plaintiff became aware for the first time that labels on the tins of glue had been changed to add a direction to "avoid breathing vapour" and to include details of the chemical, methyl-ethyl ketone. After becoming aware of these directions the plaintiff began wearing a mask at all times. The warning did not strengthen the plaintiff's belief that there was a connection between exposure and the symptoms. He was careful using the solvent in confined spaces but never thought that it would harm anyone "out in the trenches". 24 In August 1996 the plaintiff first became aware that chemical companies which manufacture the solvents supply the details of the chemicals used in the manufacture. Details of the chemical compounds were provided in safety data sheets. In August 1996 the plaintiff became aware that they should have included on their labels warnings of the chemicals in the solvents and that the manufacturers did not pass on to the consumer the details that were provided to them by the chemical companies. He was told this by Mr Johnny Walker who holds an Associate Diploma of Applied Chemistry from Royal Melbourne Institute of Technology. It was confirmed by Mr Walker in writing to the plaintiff on 26 September 1996 (Ex A). 25 In October 1996 the statement of claim pleaded as one of the particulars of negligence, the lack of warning. Particulars of negligence in the statement of claim pleaded that the defendants failed to give the plaintiff any adequate warning that fumes from the industrial glues were dangerous to humans and any or any adequate warning that the plaintiff should avoid exposure to fumes from the industrial glues and could do so by the use of masks. Although the plaintiff knew that a warning appeared on the containers of solvent it was not until after August 1996 that the plaintiff became aware that the manufacturers should have included on their labels warnings of the chemicals in the solvents and that this constituted an omission which would found a cause of action. 26 As the plaintiff has passed through the s 60I(1)(a)(iii) gateway, I turn to consider whether it is just and reasonable to extend the limitation period. Just and reasonable 27 The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Taylor. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in BHP Steel (AIS) Pty Limited v Giudice; Commonwealth of Australia v McLean (1997) 14 NSWLR 389. 28 The defendants concede that the plaintiff has a real case to advance. There is medical evidence to support the plaintiff's claim that his injuries are linked to the exposure to solvents. There is medical evidence of the second and third defendant to the contrary. This will be the subject of dispute at trial, should one occur. 29 I turn to consider the effects of delay. In Taylor McHugh J referred to the effects of delay in the now often quoted passage at p 8 which states: "The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period." 30 McHugh J at p 10 continued: "The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension." 31 and at page 11 he continued: "Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it." 32 Toohey and Gummow JJ (in their joint judgment) expressed themselves in the following terms. "The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent." 33 As was stated in Still v Newman [1999] NSWCA 43 per Fitzgerald JA that the principles in Taylor and the approach to be adopted is that while a prospective defendant might have an evidentiary onus to raise any considerations telling against the grant of leave, the applicant bears the onus of showing that justice required the grant of leave, and must at least show that the prima facie prejudice to a prospective defendant, or any specific prejudice demonstrated, are not so significant that a fair trial is unlikely. Unless an application demonstrates that, despite the delay and other circumstances of prejudice to the defendant, the defendant will have a fair trial, leave should be refused. 34 In Zegarac the Court of Appeal referred to a balancing exercise of the respective prejudices to one party or the other depending on whether leave was refused or granted which was described as "unhelpful and misleading". 35 The plaintiff submitted that the defendants would not suffer from presumptive prejudice because the case involves only a failure to warn of the dangers of the solvent and there is evidence to show that there were no warnings on the solvent cans until 1992. However this submission is based on the plaintiff's knowledge that a warning was affixed on containers produced by one manufacturer in relation to one brand of solvent. I do not think that it is that simple. The defendants will be obliged to investigate when they actually put warnings on their containers. They will also have to investigate what was known about those particular solvents since 1978 to 1994 and locate the safety data sheets during that period. The defendants did not put on any evidence to show that they suffered actual prejudice. 36 According to the plaintiff witnesses' memories would not need to be relied upon. For the defendant to locate records and investigate what was known about solvents at particular times may in part rely on witnesses' memories. The doctors' records of treatment and diagnosis of the plaintiff have been subpoenaed, produced and are available. The plaintiff purchased his supplies for 30 years from Raynor Plumbing Supplies at Girraween and later Port Macquarie. Additionally he purchased material from Coleman Plumbing Supplies at either Taree or Forster. The entities from which he purchased the solvent are relatively few and have been identified by the plaintiff. Once again the location of old records and witnesses' memories come into play when the defendants prepare their cases for trial. 37 The defendants submitted that in considering whether it is just and reasonable regard should be had to the plaintiff's firm state of knowledge in 1993 and 1994 of the connection between his symptoms and the chemical exposure to solvents and the delay in prosecuting these proceedings. In October 1994 the plaintiff was told by Dr Fluhrer to consult a solicitor. This did not occur until April 1995 but I accept the plaintiff's explanation that even though he had been told he had some permanent damage he was receiving treatment which may have made him well. However there has been a delay from April 1995 when he first consulted a solicitor to 20 December 1996 when the statement of claim was filed. The plaintiff's legal representative received the report of Dr Donohoe about one month after he was instructed. This delay of 18 months had not adequately been explained. Nor had the period of 10 months between 20 December 1996 to October 1997 when service of the statement of claim was effected. 38 The notice of motion was not filed until 2 February 1998, nearly over three years after the statement of claim was filed. The plaintiff submitted that it did not need to trouble the court unnecessarily with this application until the defendants raised the limitation period in their defences. However no defences have been filed to date. It is most unlikely that the defendants would have waived this defence as the cause of action dates back up to 20 years. It is appreciated that the blame for the delay in prosecuting the proceedings once they were commenced may rest at the feet of the plaintiff's solicitors and the plaintiff may not be personally to blame. 39 The defendants will suffer significant prejudice as it is up to 20 years since the causes of action arose. The plaintiff had firm knowledge in 1993 and 1994 that his symptoms were connected to the exposure to solvents and there have been periods of unexplained delay in prosecuting these proceedings. It is my view that the chances of a fair trial are unlikely. The plaintiff has not discharged the onus as I am not satisfied that it is just and reasonable to extend the limitation period. Costs should follow the event. The plaintiff should pay the defendants' costs. 40 The orders I make are: (1) The plaintiff's notice of motion filed 2 February 1998 is dismissed. (2) The plaintiff is to pay the defendants' costs. ********** Last Modified: 08/31/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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