ALLEN v DRAYTON COAL PTY LTD [1995] NSWCA 14

ALLEN v DRAYTON COAL PTY LTD [1995] NSWCA 14

Even if the appellant was not aware of all alternative protective measures before the limitation period expired, the trial judge did not err in the exercise of discretion in refusing an extension, because any further hearing loss suffered was minimal and mostly attributable to exposures predating the respondent's employment; thus, it was not just or reasonable to extend the period under the Act.

Parties
Appellant: Allen; Respondent: Drayton Coal Pty Ltd
Jurisdiction
Australia
Judgment Date
01 December 1995
Procedural Posture
Civil Appeal / Judgment on Appeal From District Court
Outcome
Appeal dismissed with costs.
Legal Topics
Extension of Limitation Period, Industrial Deafness, Negligence, Breach of Statutory Duty
Limitation of Actions Torts Employment Law Extension of Limitation Period Industrial Deafness Negligence Breach of Statutory Duty

Case Brief

Summary, issues, holding and outcome

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Parties

Allen

Appellant

Drayton Coal Pty Ltd

Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal From District Court

Legal Issues

  1. 1 Whether the appellant was 'unaware of the connection between the personal injury and the defendant's act or omission' within the meaning of s60I(1)(a)(iii) of the Limitation Act 1969.
  2. 2 Whether it was 'just and reasonable' to make an order extending the limitation period under s60G of the Limitation Act 1969.

Ratio Decidendi

Even if the appellant was not aware of all alternative protective measures before the limitation period expired, the trial judge did not err in the exercise of discretion in refusing an extension, because any further hearing loss suffered was minimal and mostly attributable to exposures predating the respondent's employment; thus, it was not just or reasonable to extend the period under the Act.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed.
  • Appellant to pay respondent's costs.