Steele v Master Builders Association of NSW and Anor [1999] NSWSC 33 (11 February 1999)

Last Updated: 18 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Steele v Master Builders Association of NSW & Anor [1999] NSWSC 33

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 15022/90

HEARING DATE{S): 25 November 1998

JUDGDMENT DATE: 11/02/1999

PARTIES:

Gary Michael Steele (P/Resp)

Master Builders Association of NSW (D1/Appl)

Timalco Glass Structures Pty Ltd (D2/Appl)

JUDGMENT OF: Kirby J

LOWER COURT JURISDICTION: Supreme Court (Master)

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER: Master Malpass

COUNSEL:

M B Duncan (P/Resp)

W P Kearns (D1/Appl)

G A Seib (D2/Appl)

SOLICITORS:

G H Healey & Co (P/Resp)

A O Ellison & Co (D1/Appl)

P V McCulloch & Buggy (D2/Appl)

CATCHWORDS:

Limitations

Leave to appeal

ACTS CITED:

Limitation Act, 1969

Plumb v Electricity Commission of NSW

Dedousis v Water Board

James Hardie & Co Pty Limited v Wootton

Forbes v Lindop

SRA v Gaudron

Piening v Wanless

R v Unger

Eggins v Brooms Head Bowling and Recreational Club Ltd

Harris v Commercial Minerals Limited & Ors

DECISION:

See paragraph 54

JUDGMENT:

JUDGMENT

1 HIS HONOUR: This is an appeal from a decision of Master Malpass given on 5 November 1991. Master Malpass made an order under s 60G(2) of the Limitation Act 1969 enlarging the time within which the Plaintiff might sue his employer, the First Defendant, the Master Builders' Association of New South Wales ("the Master Builders' Association"), and the Second Defendant, Timalco Glass Structures Pty Limited ("Timalco Glass"). The action arose out of injuries sustained by the Plaintiff on 25 October 1983.

2 The Notice of Appeal was lodged by the First Defendant on 5 January 1993, and by the Second Defendant on 3 February 1993. In each case, therefore, the notice was filed considerably outside the 28 day period fixed by Pt 60 r 11(2) of the Supreme Court Rules. An extension of time is required by each appellant before the merits of the appeal can be considered.

3 I have formed the view that, in each case, leave should be given to appeal. It is convenient to postpone, for the moment, a statement of my reasons. They will emerge in the description which I now give of the way in which the action arose, and the manner in which it progressed.

The Broad Chronology of Events

4 The Plaintiff was born in 1956. In 1982 he began an apprenticeship as a carpenter with the Master Builders' Association. He completed that apprenticeship in 1985. He was, apparently, by arrangement, loaned by his employer to Timalco Glass. Whilst working with that company, at a site at Northbridge, he sustained an injury to his right wrist on 25 October 1983. He was operating a large drill. The drill was fitted with a masonry bit. The drill struck a piece of reinforcing steel, causing the drill bit to "grab". The handle kept revolving, striking the Plaintiff's right wrist. The matter was reported. A workers' compensation form was completed, although the Plaintiff remained at work. He sought treatment from the St George Hospital, and was referred to a specialist, Dr Benesik. He saw Dr Benesik over the next several months, undertaking physiotherapy. He was able to continue working.

5 In 1987 he became self employed. It will be necessary, later in this judgment, to examine closely the evolution of his symptoms in the years following the injury.

6 The limitation period expired on 24 October 1989.

7 On 27 August 1990, 10 months out of time, the Plaintiff filed a Statement of Claim, against the First and Second Defendants. The Statement of Claim was served upon each defendant. However, only the First Defendant, the Master Builders' Association, filed an appearance and a defence. The defence (filed on 12 November 1990) asserted that the claim was out of time.

8 The Plaintiff's solicitors were slow to react. On 25 June 1991, a Notice of Motion was filed by those solicitors. It identified the First and Second Defendants, following the format of the Statement of Claim. The order it sought, however, was that the time under the Limitation Act 1969 in which the Plaintiff might commence proceedings against the Defendant (singular) be extended. The return day for the Motion was 26 July 1991. In an affidavit subsequently filed on behalf of the Plaintiff, the following appeared:

"On the 2nd July, 1991 a copy of the Notice of Motion was served on the second Defendant. Annexed hereto and marked with the letter "B" is a copy of the service of the Notice of Motion and Affidavit in support thereof."

9 However, the annexure was a letter addressed to the solicitor for the First Defendant, the Master Builders' Association. Whilst the Plaintiff's solicitors may have believed that the Second Defendant had been served with the Notice of Motion, it was common ground before me that the Second Defendant (Timalco Glass) had not been served.

10 The matter ultimately proceeded before Master Malpass on 24 October 1991. The transcript is headed "Gary Michael Steele v Master Builders Association of New South Wales & Anor". There was an appearance for the Plaintiff. Mr Meadley is recorded as having "appeared for the defendant" (singular). However, there is no reference to the Second Defendant having been called.

11 The Master reserved his decision, which he then gave on 5 November 1991. The decision, when given, did not differentiate between the defendants. Indeed, it appears that the Master assumed, perhaps not unreasonably, that a position was being put jointly on behalf of both defendants. He, for instance, said this: (p 5/6)

"On behalf of the defendant, it is also said that if an order is made, there will be substantial prejudice to the defendants. I am unable to accept this submission. The defendants have not led any evidence of prejudice that would be suffered by reason of delay." (emphasis added)

12 He added: (p 6)

"I bear in mind that if the relief sought is granted, the defendants will lose the benefit of the statutory defence. Correspondingly, there will be hardship to the plaintiff, if the order is not made." (emphasis added)

13 The order which was made, extending time, purported to apply to both defendants.

14 On 29 November 1991, the First Defendant (the Master Builders' Association) filed its own Motion. It sought leave to extend the time for filing a cross claim against the Second Defendant (Timalco Glass). The Motion was supported by an affidavit. The affidavit drew attention to the fact that Timalco Glass Structures was a company (Timalco Glass Structures Pty Limited), and included the following paragraph:

"On 5th November, 1991 Master Malpass ordered that the limitation period for the cause of action pleaded in the Statement of Claim be extended for a period up to and including 27th August, 1990 the date upon which the Statement of Claim herein was filed."

15 The Motion was returnable on 10 December 1991, although stood over from that date. It was served upon Timalco Glass. Service of the First Defendant's motion provoked a response at last from the Second Defendant. An appearance was filed on 12 December 1991, as well as the Statement of Defence on behalf of the Second Defendant. The Statement of Defence raised the defence that the claim was Statute barred under the Limitation Act 1969.

16 On 17 March 1992, the Plaintiff filed a notice to amend the name of the Second Defendant to Timalco Glass Structures Pty Limited. Prothonotary Whalan gave leave to make that amendment. He also gave leave to the Master Builders' Association to file a cross claim against Timalco Glass.

17 On 5 January 1993, as mentioned, the Master Builders' Association lodged a Notice of Appeal against the Master's decision of 5 November 1991. The Notice was supported by an affidavit by the solicitor for the First Defendant identifying the basis upon which the Court, in its discretion, should give leave to extend the time for filing an appeal pursuant to Pt 60 r 11(2) and (4). The affidavit essentially did two things. First, it sought to explain the delay between November 1991 (when the Master gave his decision), and April 1992. Secondly, it sought to explain several months additional delay (May 1992 to December 1992), occasioned by counsel being slow to provide advice which had been sought.

18 The reason for the initial delay (November 1991 to April 1992) related to a change in the law. When the matter proceeded before Master Malpass, it was common ground that the Master was bound by a decision by McInerney J in Plumb v Electricity Commission of New South Wales (unreported, 6 August 1991). McInerney J, in that case, reached a particular view on the construction of the Limitation Act. The Electricity Commission of New South Wales, however, appealed to the Court of Appeal against McInerney J's decision. The Court of Appeal gave its judgment on 28 April 1992, allowing the appeal.

19 Returning to the chronology, the appeal by the Second Defendant was lodged on 3 February 1993. It likewise sought to take advantage of the overturning of the authority which the Master had relied upon. The two appeals came before Campbell J on 19 March 1993. They were stood over generally with liberty to restore on seven days notice. It was noted on the court file that an appeal in respect of a similar issue was pending. This was a reference to the matter of Dedousis v Water Board. The Court of Appeal gave judgment in that matter on 20 August 1993. Special leave was thereafter given by the High Court. The High Court ultimately gave its decision on 16 November 1994 (Dedousis v Water Board 125 ALR 193).

20 On 28 November 1994 the solicitor for the First Defendant wrote to the Supreme Court seeking to have the matter restored to the list. The matter was restored, but there was no appearance for any party. Either the Court omitted to notify the parties, or the notices were not received. The First Defendant again sought to have the matter restored (23 March 1995). The matter came before Spender AJ on 3 April 1995. The Plaintiff was required to file a Notice of Contention (which was duly filed). The parties were given leave to approach the List Judge, and to apply on two days notice.

21 Nothing happened thereafter for a number of years. Neither appellant sought to prosecute its appeal. The Plaintiff took no steps to complete the pleadings, and have the matter set down for trial.

22 On 15 April 1998 the matter, by consent, was transferred to the District Court. It was then that the parties woke up. On 10 September 1998, the solicitors for the Second Defendant (Timalco Glass) sought to have the appeal restored to the list. On 17 September 1998, the solicitor for the Master Builders' Association likewise sought to have the appeal determined.

The Change in the Law

23 The application by Mr Steele, the Plaintiff, was brought, relevantly, under Subdivision 3 of the Limitation Act, 1969. Subdivision 3 is headed, "Discretionary extension for latent injury etc.". That subdivision begins with s 60F, which identifies the purpose of the subdivision in these terms:

"60F. The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date."

24 Mr Steele's cause of action accrued before 1 September 1990, namely on 25 October 1983. By cl 4(1) of Schedule 5, s 60G applied to such a cause of action. Clause 4(4) defined the power of the Court to make an order under that section as follows:

"Cl.4(4) The court may make an order under section 60G or 60H, in relation to a cause of action referred to in this clause, within:

(a) the period of 3 years referred to in section 60 I; or

(b) the period of 3 years commencing on 1 September 1990."

25 Section 60G(2) is in these terms:

"60G(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines."

26 Finally, s 60 I identifies the matters to be considered by the Court when making an order under s 60G. It says this:

"60 I(1) A court may not make an order under section 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 3 years after the plaintiff became aware (or ought to have become aware of all 3 matters listed in paragraph (a) (i)-(iii)).

(2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision."

27 These provisions were considered in a number of decisions before and after the decision by Master Malpass in this case on 5 November 1991. On 22 November 1990, the Court of Appeal (Gleeson CJ, Kirby P and Meagher JA) decided James Hardie & Co Pty Limited v Wootton ((1990) 20 NSWLR 713). The plaintiff suffered from asbestosis. He wished to commence an action for damages, he having not appreciated that he may contract mesothelioma. The Court was plainly dealing, therefore, with a latent injury. It was common ground that the Plaintiff could not satisfy the requirements of s 60 I. However, Gleeson J said this: (at 717)

"Nowhere does it say that s 60 I has general application, although of course in its practical operation cl 4(4)(a) requires attention to be paid to the provisions of s 60 I."

28 The Chief Justice added: (at 717)

"I see no justification for importing into the operation of cl 4(4)(b) the provisions of s 60 I."

29 The other members of the Court agreed.

30 Thereafter, McInerney J held in Plumb v Electricity Commission of New South Wales on 6 August 1991, that cl 4(4)(b) applied to all injuries, whether latent or otherwise.

31 Two principles, therefore, had been established by the time the matter came before Master Malpass in October 1991:

· The first, that in respect of a cause of action accruing before 1 September 1990 (cl 4(1)), and in the period defined by cl 4(4)(b) (ie between 1 September 1990 and 1 September 1993), s 60 I need not be satisfied.

· Secondly, in such an application, it did not matter that the injury was patent rather than latent, as defined by s 60F.

32 In his judgment in the present matter, Master Malpass set out the provisions of the Limitation Act 1969 which he considered relevant. They did not include s 60 I. Master Malpass appeared not to regard the injury to Mr Steele as being a latent injury, but, following McInerney J in Plumb v Electricity Commission, that was not a barrier to success.

33 In April 1992 the Court of Appeal (Mahony, Handley and Sheller JJA) gave judgment in Electricity Commission of New South Wales v Plumb ((1992) 27 NSWLR 364). The appeal against the decision of McInerney J was allowed. Clause 4(4)(b) of Schedule 5 of the Limitation Act 1969 applied only to latent injuries, as defined by s 60F.

34 In November 1994, the High Court (Deane, Dawson, Toohey, Gaudron and McHugh JJ) gave judgment in Dedousis v Water Board (125 ALR 193). Section 60F was not given the prominence it was accorded in Plumb. The Court said this: (at 197)

"In our opinion, s 60F is no more than an introductory provision that indicates the purpose of Sub-Div 3. It provides a summary of the effect of the substantive provisions of the Sub-Division."

35 There was no warrant, therefore, for distinguishing between latent and patent injuries in cl 4(4). Rather, the position was as follows: (at 199)

"The result is that the plaintiff must satisfy the requirements of s 60 I(1)(a) and then satisfy the court that his application for an extension was brought within the time limit specified in either cl 4(4)(a) or cl 4(4)(b). This approach is in accordance with the language of the Act."

36 The Court added: (at 199)

"Thus the legislature appears to have intended that the plaintiff must have been unaware of at least one of the matters referred to in s 60 I(1)(a) before an extension could be granted, no matter when the plaintiff's cause of action accrued."

37 In that case (as in the case of Mr Steele), the plaintiff's cause of action had accrued before 1 September 1990. The application for an extension had been made within the period defined by cl 4(4)(b), as it had in the case of Mr Steele. The following comment by the Court, therefore, has application to Mr Steele. The Court said this: (at 200)

"Because the plaintiff's action falls within cl 4(1), he is entitled to seek an exercise of the court's discretion under s 60G(2) to extend the relevant limitation period. Further, because the plaintiff's application falls within cl 4(4)(b), he is taken to have met the time requirement laid down in s 60 I(1)(b). However, the plaintiff is not entitled to any order under s 60G unless the court is satisfied that he was unaware of at least one of the matters referred to in s 60 I(1)(a)."

38 It is clear that the appeals by the defendants in this case were provoked by the reversal of McInerney J in Electricity Commission of New South Wales v Plumb. The Court of Appeal was itself then overruled by the High Court in Dedousis v Water Board. However, the law, as it emerged in Dedousis, was very different from the law as it was assumed to be at the time Master Malpass heard the appeal. There was a requirement that s 60 I be satisfied. In the circumstances, and notwithstanding the delay between May 1992 and January 1993, I believe it is appropriate to give leave to appeal to each defendant.

39 I should mention that the decision by the Master was interlocutory in nature (Forbes v Lindop (C of A (Kirby ACJ, Clarke, Sheller JJA), unreported, 17 July 1995): SRA v Gaudron (C of A (Priestley, Meagher JJA, Brownie AJA), unreported, 12 August 1997)). The action had not been concluded by verdict or judgment (cf Piening v Wanless ([1967-1968] [1968] HCA 7; 117 CLR 498): R v Unger ([1977] 2 NSWJ 990): Eggins v Brooms Head Bowling and Recreational Club Ltd ((1984) 5 NSWLR 521)). It was not inappropriate that the limitation issue should be revisited in the light of the law as it has emerged.

The Appeal by the Second Defendant

40 The Second Defendant is in a rather different position from the First Defendant. When the matter was first mentioned before me, as the Duty Judge, on Monday 23 November 1998, the Second Defendant sought to file in court an Amended Notice of Appeal. There was no debate. The document was simply handed up. It was placed with the Court papers. The Plaintiff was represented by a solicitor. The amendment sought to add that the Second Defendant had not been served with the Notice of Motion of 25 July 1991 (by which the Plaintiff sought an enlargement of the limitation period). It was argued that, since Pt 19 r 4 required personal service in circumstances where an appearance has not been filed, the Master's order should not be construed as applying otherwise than to the First Defendant. Alternatively, if, on its proper construction, the order of the Master purported to bind both defendants, the Master's judgment is, in respect of the Second Defendant, irregular, in terms of s 81(1) of the Supreme Court Act 1970. It should be set aside.

41 The Second Defendant drew attention to the following statements in Ritchie, in the notes that accompany s 81 (p1147):

"For example, it is well established that a defendant who has not been served with the originating process, or one who has not been given notice of the hearing, is entitled to have a judgment against him set aside under the court's inherent jurisdiction: Craig v Kanssen [1943] 1 KB 256; White v Weston [1968] 2 QB 647; Re Pritchard; Ex parte Pritchard v Deacon [1963] Ch 502; MacFoy v United Africa Co Ltd [1962] AC 152 at 160; Re Marsh; Ex parte Marsh v Paramount Leisure Products Pty Ltd [1991] FCA 558; (1991) 104 ALR 533; cf Crawford v Fisher (1907) 24 WN(NSW) 102."

42 I believe the Master's order of 5 November 1991 should be construed as having been made against both the First and Second Defendants.

43 It is, as mentioned, common ground that the Second Defendant was not served with a Notice of Motion, although I accept that it was served with the Statement of Claim, which it chose to ignore. In respect of the present appeal, no affidavit was filed on behalf of the Second Defendant. It was said from the bar table, and repeated in written submissions (26 November 1998), that the Second Defendant (through its solicitors) first received actual notice of Master Malpass' order in January 1993 when it was served with a copy of the affidavit of the solicitor for the First Defendant which accompanied the Notice of Appeal. The statement by counsel from the bar table is not evidence. Nor is the written submission. The matter was not conceded by the Plaintiff. The Second Defendant was, however, served with the earlier affidavit of the First Defendant's solicitor, dated 29 November 1991. That affidavit, in the passage extracted above (supra p 4), specifically referred to the decision of Master Malpass. I infer, as a matter of probability, that the Second Defendant knew of Master Malpass' order soon after it was made. It had the means of determining whether that order had been made irregularly. As a matter of probability, it either determined that issue, or regarded it as unimportant to do so. Had it moved immediately to set aside the judgment under Pt 40 r 9, the Plaintiff could have issued a fresh application which would still have been within the time fixed by Schedule 5 cl 4(4)(b) of the Limitation Act 1969. Even had the Second Defendant moved with reasonable dispatch after January 1993, when it claimed that it first became aware of the judgment of Master Malpass, it should have emerged before September 1993 when the period identified by cl 4(4)(b) expired. However, the Second Defendant did not do so. I do not believe, in these circumstances, that, in determining an appeal from the Master's decision, I should deal with the issue as though I were dealing with an application under Pt 40 r 9. I am, however, prepared to regard the irregularity in failing to serve the Notice of Motion as a further reason why leave to appeal should be given to the Second Defendant. Having regard to the changes in the law to which I have referred, and the irregularity in respect of service, and notwithstanding the delay, I believe that it is appropriate to give the Second Defendant leave to appeal against the decision of Master Malpass. Were I to determine that appeal against them, it would no doubt still be open to the Second Defendant to bring an application under Pt 40 r 9.

The Merits of the Appeal

44 The parties have agreed that, in the event of my giving leave to appeal to either defendant (as I now have), I should myself determine the merits of the application upon the basis of the material which was before the Master. However, it is not altogether satisfactory to do so. When the matter proceeded before Master Malpass, for the reasons explained, it was not regarded as relevant to satisfy the separate limbs of s 60 I. Questions, therefore, were not directed to the precise issues arising under that section. The Plaintiff sworn an affidavit. He also saw a number of doctors. He recounted a history of his disabilities. He was cross examined before Master Malpass. The cross examination was obviously based upon the affidavit and the medical reports. However, the apparent conflict between certain aspects of the Plaintiff's evidence, and either his affidavit or the history given to various doctors, was not specifically brought to his attention. The task of determining the true position, as a matter of probability, in these circumstances, is, therefore, not easy.

45 Directing my attention to s 60 I(1)(a), it is plain that the Plaintiff was aware that he had suffered personal injury (s 60 I(1)(a)(i)). Was he unaware of the nature and extent of the personal injury as at 24 October 1989, when the limitation period expired, or at a time before that expiration when proceedings might reasonably have been instituted (s 60 I(a)(1)(ii))? The High Court has determined, Harris v Commercial Minerals Limited & Ors ([1995-96] [1996] HCA 49; 186 CLR 1 at 12) that the "extent" of the injury is to be determined as at the date of the application (October 1991), and not the expiration of the limitation or earlier period.

46 The Plaintiff described in his affidavit the growth of symptoms over time. The injury was to the wrist. He had conservative treatment (physiotherapy). He was led to believe that the condition would resolve. However, he developed pain in his forearm. He fixed the time of onset of such pain as being two or three years after the accident (affidavit p 2(10)), or "about a year or so after the accident" (Dr Greenwell, report 11.1.91 p 2). When cross examined, Mr Steele thought that the forearm pain first began "a number of years" after the accident (T 4). This was plainly something known to him well before the limitation period expired in 1989. Mr Steele, in his affidavit, said this: (p 3)

"13. By the end of 1989 and early 1990 I had become self-employed as a Carpenter and I had found that I was now dropping things such as hammers when using my right hand, I was having difficulties in picking up heavy objects using my right arm and/or wrist, I was having problems drilling with my right hand, and I was having difficulties in social pursuits such as squash and fishing.

14. Due to the difficulties that I was experiencing at the end of 1989 and early 1990 it became necessary for myself and my partners to assign various work between us having regard to a weakness and pain that I was experiencing in my right wrist.

15. As a result of the ongoing difficulties I was having I consulted a Dr De Sousa who advised me on 3 August 1990 to wear a splint or brace however I found this to be of no assistance at all."

47 Mr Steele amended his affidavit before giving evidence. He had been mistaken in respect of the time he became self employed. The words "in approximately 1987" were substituted for the dates appearing in paragraph 13 above (T 1). Mr Steele, when cross examined, confirmed that the problems became worse when he established his own business in approximately 1987. Again, this was a matter known to him before the expiration of the limitation period.

48 There was no report from Dr De Sousa. However, there was an x-ray report which was obtained at his request, and which is dated 2 August 1990.

49 However, there was a further symptom. The Plaintiff developed pain in the right shoulder. There is some uncertainty as to when this pain developed, although it is clear that its onset was more recent. The Plaintiff told Dr Greenwell that his symptoms were identified as being possibly associated with the wrist injury by Dr Ong (T 7). He did not state when that diagnosis was postulated. Dr Greenwell, writing in January 1991, recorded a history from the Plaintiff that "his shoulder symptoms have been apparent over the past two years" (exhibit 1, p 2). If that were accurate, the symptoms would first have manifested in approximately January 1989, which is before the expiration of the limitation period.

50 The evidence as to the association between the shoulder symptoms and the injury is spare. There is no medical evidence from the Plaintiff on this aspect. Dr Greenwell (for the defendant) thought that the shoulder symptoms were unrelated to the accident. The Plaintiff, himself, said this: (T 4)

"Q. You also indicated to Dr Greenwell that you developed some shoulder symptoms?

A. Yes. I didn't say that they were related to it. I am saying that I had trouble with my shoulders."

51 On the evidence, therefore, the symptoms in the right wrist, right forearm, and even the right shoulder, had manifested themselves before the expiration of the limitation period (that is, before 25 October 1989). Accordingly, I am not satisfied that, in terms of s60 I(1)(a)(ii), that the plaintiff was unaware of the nature and extent of the personal injuries before that date. The symptoms certainly became worse with time. However, the trigger for that deterioration appears to have been the plaintiff becoming self employed. That occurred in 1987, well before the expiration of the limitation period (25 October 1989).

52 One then comes to the final sub-paragraph of s60 I(1)(a)(iii): can it be said that the plaintiff was unaware of the connection between the personal injury and the defendants acts or omissions? The plaintiff, from the outset, clearly appreciated the connection between the wrist symptoms and the accident. The forearm symptoms developed soon after. It is apparent that the plaintiff associated those symptoms with the accident, as did Dr Ong. The shoulder symptoms, in the plaintiff's mind, may or may not have been connected. The plaintiff appreciated the possible association between the accident and the shoulder symptoms, although he remained uncertain. There is no medical evidence before me that connects those symptoms with the accident. Indeed, as mentioned, the only medical report which addressed that issue was that of Dr Greenwell, for the defendants, who believed that there was no relationship between the accident and the shoulder symptoms. Since the shoulder symptoms, in any event, arose before the expiration of the limitation period, it is likely that the plaintiff's appreciation of the possible connection between the accident and those symptoms was itself prior to the expiration of the limitation period. Accordingly, I am not satisfied that the plaintiff was unaware of the connection between the personal injuries he suffered, and the defendants' acts or omissions.

53 The plaintiff, therefore, has not proved, as a matter of probability, that he was unaware of at least one of the matters referred to in s 60 I(1)(a). Since this is a preliminary requirement to success under s 60G(2) it is unnecessary for me to deal with the issues which arise under that section. I therefore allow the appeal.

54 I make the following orders:

1. I give leave to appeal to the First Defendant and the Second Defendant pursuant to Pt 60 r 11(4).

2. The appeal by the First and Second Defendants against the order of Master Malpass made on 5 November 1991 is, in each case, allowed.

3. The application by the Plaintiff for an extension of time under s 60G(2) against the First and Second Defendants is, in each case, refused.

4. The Plaintiff should pay the costs of the First and Second Defendants, but should have an Indemnity Certificate under the Suitor's Fund Act.

LAST UPDATED: 11/02/1999