Harris v Commercial Minerals Ltd

(b) otherwise, the appeals to that Court by the respondents be dismissed;

(c) the matter be remitted to the Dust Diseases Tribunal of New South Wales to assess the damages to be awarded against the second and third defendants before that Tribunal on the basis of the findings of and the evidence before Judge Johns.

4. The respondents pay the costs of the appellant in the New South Wales Court of Appeal and in this Court.

The Court delivered the following written judgment: -

3 April 1996 Dawson, Toohey, Gaudron, McHugh and Gummow JJ

Pursuant to the grant of special leave, Donna Therese Harris, as administratrix ad litem (the administratrix), appeals against an order of the New South Wales Court of Appeal setting aside a judgment for damages and an order extending the time for commencing the action for damages. The judgment and the order extending time were made by the Dust Diseases Tribunal of New South Wales in favour of Denis Paul Hollins (the worker) who died before the hearing of this appeal.

The questions in the appeal are: (1) whether the worker was entitled under subdiv 3 of Div 3 of Pt 3 of the Limitation Act 1969 NSW (the Act) to an extension of the six year statutory limitation period applicable to his action; and (2) whether future benefits payable under the Workers' Compensation (Dust Diseases) Act 1942 NSW (the Dust Diseases Act) are to be taken into account when awarding damages for future economic loss as the result of an injury that is also compensable under that legislation.

We would answer both questions, yes, allow the appeal, but remit the matter to the Dust Diseases Tribunal for further hearing.

In 1991, the worker brought an action for damages against three companies claiming damages for negligence and breach of statutory duty. His statement of claim alleged that he suffered from silicosis as the result of his exposure to dust during the course of his employment.

The first company, Landora Securities Pty Ltd (Landora), employed the worker from 25 October 1953 to 31 March 1955. Landora again employed the worker from 8 July 1957 to 12 July 1962. From 1 July 1969 until 31 March 1973, the second company, Auqal Pty Ltd (Auqal), employed the worker after purchasing the business of Landora. From 31 March 1973 until 15 August 1986, the third company, Commercial Minerals Ltd (Commercial), employed the worker after purchasing the business of Auqal.

All three employers were engaged in processing raw minerals for industrial uses, a process which exposed the worker to considerable quantities of silica dust. As a result, he contracted silicosis which is a disease that "involves the fibrosis of many areas within the lung, around the small bronchioles, they are the small breathing tubes in the lung". The disease is idiosyncratic in the sense that its precise course is not predictable. In most cases of silicosis, isolated nodules of fibrosis appear in the lung. At some point, however, the worker developed a progressive massive fibrosis which "is a coalescence of the rounded deposits". A progressive massive fibrosis is not a necessary consequence of silicosis.

The worker was examined by the Dust Diseases Board in 1971 after he learnt that his father, who had been engaged in similar work, had silicosis. The Board informed the worker that he had silicosis and that he had a 10 per cent disability.

In 1972, the worker became employed as a truck driver with Auqal in order to minimise his exposure to dust. Nevertheless, his new work still exposed him to dust. His condition deteriorated. In 1978, the Board assessed his disability at 40 per cent, in 1982 at 50 per cent, in 1985 at 60 per cent, at the commencement of 1986 at 70 per cent and later that year at 100 per cent.

When the worker commenced his action on 25 March 1991, his right of action against Landora and Auqal was statute-barred. So was his right of action against Commercial, except for causes of action that had accrued during the last seventeen months of his employment from 25 March 1985 to 15 August 1986. However, s 60G together with Sch 5 to the Act provides for the extension of limitation periods in actions for personal injury accruing before 1 September 1990.

(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(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.

In terms, s 60G is limited to actions arising after 1 September 1990, but Sch 5, cl 4 of the Act applies s 60G to a cause of action, excluding an action arising under the Compensation to Relatives Act 1897 NSW, that accrued before 1 September 1990. Clause 4 relevantly provides:

(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 60I; or

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

(1) A court may not make an order under section 60G or 60H unless it is satisfied that:

(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 3 matters listed in paragraph (a)(i)-(iii).

In the Dust Diseases Tribunal, Judge Johns ordered that the limitation periods against each defendant be extended. His Honour held that "the [worker] had some doubts as to the nature, the extent and the cause of his disease, at least until some time after 1986". He noted that the defendants had not offered any evidence of any disadvantage or prejudice that they would suffer from an extension of the limitation period. Judge Johns found that each of them was in breach of the duty of care it owed to the worker. He entered a single judgment against the defendants for $502,272.

The employers appealed to the New South Wales Court of Appeal. Handley JA, with whose judgment Meagher and Sheller JJA agreed, applied s 60F of the Act as the relevant provision. In doing so, his Honour followed the decision of that Court in Electricity Commission (NSW) v Plumb [1] , the reasoning of which was subsequently overruled by this Court in Dedousis v Water Board [2] . Handley JA held that the worker needed to prove that he " "was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time" (s 60F), the relevant time being "at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted" (s 60I(1)(a))". His Honour held that, at the expiration of the limitation period against Landora in July 1968, the worker was not aware of the nature or extent of his injury. Consequently, the Tribunal had power to extend the limitation period against that company. However, his Honour held that the worker was aware of the nature and extent of his injury when the limitation period against Auqal expired on 1 April 1979. Handley JA said:

I can only conclude that by 1979 the worker knew that he had silicosis, the general nature of this disease, its extent as determined by the Board in 1978, and its cause he knew that there was "a real chance" or "a real risk" that his condition would continue to worsen In other words there is no evidence and no finding that the worker's knowledge in relation to the second defendant's contribution to his silicosis is any greater now than it was in 1979.

In these circumstances it seems to me that by 1 April 1979 the worker's knowledge of the extent of his then disability was for all practical purposes complete. The further deterioration that has occurred since was reasonably foreseeable and the worker was aware of this risk or chance.

Furthermore, his Honour held that, although the worker's condition deteriorated after 1 April 1979, there was no evidence that his employment with Auqal was responsible for that deterioration. 1. (1992) 27 NSWLR 364. 2. (1994) 181 CLR 171.

Handley JA also held that the worker was aware of the extent of his injury between 16 August 1986 and 24 March 1991 and that there was no power to extend the limitation period in respect of statute-barred causes of action against Commercial.

Finally, Handley JA held that Judge Johns had erred in not deducting the benefit of future payments under the Dust Diseases Act because "compensation under the Act is a matter of legal entitlement and not administrative discretion".

The New South Wales Court of Appeal ordered a new trial of the action against Landora generally and against Commercial with respect to any causes of action that accrued after 25 March 1985.

Dedousis decided that, in cases coming within Sch 5 to the Act, the effect of cl 4(4) of that Schedule is that an applicant must satisfy the requirements of s 60I(1) and not s 60F of the Act as the New South Wales Court of Appeal held in this case. In Dedousis, this Court said [3] :

This effectively results in cl 4(4)(b) inserting an alternative time limit in s 60I(1)(b) where the court is considering an application for extension in relation to a cause of action that accrued before 1 September 1990. The result is that the plaintiff must satisfy the requirements of s 60I(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). 1. Dedousis (1994) 181 CLR 171 at 179.

If s 60I(1) is satisfied, an applicant must then satisfy the court that it is "just and reasonable" to extend the limitation period [4] .

Consequently, if a cause of action accrued before 1 September 1990 and an applicant makes an application for an order to extend the limitation period before 1 September 1993, s 60I(1)(b) is satisfied. In the present case, the worker made his application on 25 March 1991. Accordingly, he satisfied par (b) of s 60I(1). The critical question, therefore, is whether he satisfied the provisions of par (a) of s 60I(1).

Having regard to the diagnosis of silicosis in 1971 by the Dust Diseases Board, it is clear that the worker failed to establish that he "did not know that personal injury had been suffered" within the meaning of sub-s (1)(a)(i) of s 60I. Accordingly, his application for an extension could only succeed by showing that he was unaware of the nature or extent of the injury or unaware of the connection between the injury and his employers' acts or omissions. The worker did not rely on the second alternative.

Section 60I(1)(a)(ii) - " the nature or extent of personal injury "

Judge Johns held that it was not until some time after 1986 that the worker became aware of the "nature or extent" of his injury. He accepted the worker's oral evidence "that he thought his illness or disease would remain static and that it would not necessarily deteriorate further". His Honour said that he thought "that the adoption by the [worker] of that position in relation to his particular disease was, in the circumstances, not unreasonable". The learned judge concluded "that the [worker] had some doubts as to the nature, the extent and the cause of his disease, at least until some time after 1986".

However, in the New South Wales Court of Appeal, Handley JA found that the worker's awareness of the nature or extent of his disease was "for all practical purposes complete at all times between 2 April 1979 and 15 August 1986". His Honour effectively applied an objective test in determining the issue. He said:

In these circumstances it seems to me that by 1 April 1979 the worker's knowledge of the extent of his then disability was for all practical purposes complete. The further deterioration that has occurred since, to the extent that it was caused wholly or in part by his exposure to dust during his employment by the second defendant, was reasonably foreseeable and the worker was aware of this risk or chance. As a general rule it seems to me that variations in the later progress of a disease within limits that were reasonably foreseeable at an earlier stage cannot establish a relevant lack of awareness of the nature or extent of that disease for the purposes of s 60F. Although his Honour made these remarks in the course of applying s 60F of the Act, it seems certain that he would have applied the same reasoning to s 60I(1)(a)(ii).

With great respect to his Honour, however, reasonable foreseeability has no part to play in determining the issue posed by s 60I(1)(a)(ii). To satisfy s 60I(1)(a), an applicant must prove that he or she was "unaware of the nature or extent of personal injury" (s 60I(1)(a)(ii)) or "unaware of the connection between the personal injury and the defendant's act or omission" (s 60I(1)(a)(iii)) at the relevant time. To look to anything other than the applicant's actual awareness of the matters referred to in sub-pars (ii) and (iii) would be to read into s 60I(1)(a) a doctrine of constructive notice that is not justified by the language of the provision [5] . What this Court said in Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd [6] about the meaning of the words "first becomes aware of" in a Queensland statute is equally applicable to the term "unaware" in s 60I(1)(a):

[T]he very words "becomes aware" strongly indicate that the statute is looking to the purchaser's actual knowledge of the failure which, by description, is a failure to comply with the statutory provisions. We conclude that the words "becomes aware of the failure" in s 49(5) involve not only knowledge that a statement containing the specified material has not been given but an awareness that the fact that such a statement was not given constitutes a "failure" to do something which the Act says should be done. 1. CRA Ltd v Martignago (1996) 39 NSWLR 13 at 18, per Clarke JA. 2. (1983) 155 CLR 129 at 151. For further judicial support for such a construction see also Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 at 707, per Mahoney JA; The Commonwealth v Dinnison (1995) 56 FCR 389 at 403-404.

Support for a subjective construction of s 60I(1)(a)(ii) and (iii) can be found in the words of s 60I(1) themselves. The words "or ought to have become aware" appear in sub-s (1)(b) but not in sub-s (1)(a). This is a strong indication that neither reasonableness nor constructive knowledge is an element of sub-s (1)(a) [7] .

1. cf CRA Ltd (1996) 39 NSWLR 13 at 18-19, per Clarke JA.

While s 60I(1)(a)(ii) makes it clear that an applicant must prove that he or she was unaware of the nature or extent of the personal injury suffered "at the expiration of the relevant limitation period" or at the earlier time mentioned, it is unclear as to when the "nature or extent of the injury" is to be determined. Does the paragraph refer to the nature or extent of the injury at the time when the limitation or earlier period expired? Or does it refer to the nature or extent of the injury at the time of the application or some other time? If the first construction is correct, the applicant will have to prove the nature or extent of the injury at the expiration of the limitation period and that he or she was unaware of either its nature or its extent at that time. Any subsequent consequences or developments of the injury will be irrelevant. On the other hand, if the second construction is correct, an applicant will have to prove the nature or extent of the injury at the time of the application or other time and then show that at the expiration of the limitation period he or she was unaware of the nature or extent of the injury as proved at the time of the application or other time.

The worker's case in this Court and the judgments in the Dust Diseases Tribunal and the New South Wales Court of Appeal proceed on the basis that the second construction is the correct one. But the correctness of that view is far from clear. In its terms, par (a) simply requires proof that the applicant was unaware of the nature or extent of the injury at the expiration of the limitation or earlier period. This seems to indicate that the course of an injury after the expiration of the limitation period is not an issue under s 60I(1)(a)(ii), although it could no doubt throw light on what was the nature or extent of the injury at the expiration of the limitation or earlier period.

Furthermore, it seems unlikely that Parliament would have intended that par (a) should raise an issue as to whether an applicant was aware of a consequence of an injury which at the expiration of the limitation period did not exist, but which developed later. In the present case, for example, the worker asserted that he suffered from impotence and depression as a result of his silicosis. He claimed that these conditions developed well after all the limitation periods had expired. If the impotence and depression are part of "the extent" of his injury for the purpose of par (a), it would have required considerable foresight on his part to have been aware of them - unless he had knowledge that impotence and depression are the natural consequences of silicosis.

The textual and policy considerations in favour of the first construction are strong. But the practice of the courts in New South Wales and the Federal Court is to apply the second construction. Those courts regularly take account of consequences that manifested themselves long after the expiration of the limitation period [8] . This seems the better view of s 60I(1)(a)(ii). The "extent" of an injury must include all its consequences. It is not an unnatural reading of s 60I(1)(a)(ii) to hold that what the court must consider is the total extent of the applicant's injury in determining whether, at the expiration of the limitation or earlier period, he or she was aware of the extent of the injury. Unless that construction is adopted, the Act will fail to provide for the very sort of case for which the legislation is designed to provide a remedy. That is to say, the case where the most serious consequences of an injury only arise after the expiration of the limitation period.

1. See, eg, CRA Ltd (1996) 39 NSWLR 13; Bulley v The Commonwealth (unreported; NSW Court of Appeal; 31 January 1996); Dinnison (1995) 56 FCR 389.

Thus in The Commonwealth v Dinnison [9] , although the applicant was aware during the limitation period that he had an anxiety state, it was only after the expiration of that period that he became aware that he had a psychiatric illness. Because of that fact, the Full Court of the Federal Court held that he was not aware of the extent of his injury. Similarly in F J Walker Ltd v Webber [10] , the New South Wales Court of Appeal held that, although the applicant knew that he had a disc lesion, he was unaware of "the extent" of his injury because "he did not know it would or could lead to a surgical fusion or unfitness for work" [11] .

1. (1995) 56 FCR 389. 2. Unreported, 16 November 1989. This was a decision on the meaning of "the nature and extent of the personal injury" in s 57(1)(b) of the Act. 3. F J Walker Ltd (unreported; 16 November 1989), at 5.

The better view of s 60I(1)(a)(ii) is that "the extent" of the injury is to be determined as at the date of the application and not at the expiration of the limitation or earlier period. When the extent is so determined, the applicant must prove that, at the expiration of the limitation or earlier period, he or she was unaware that the injury was so extensive. As Clarke JA said in CRA Ltd v Martignago [12] :

The sub-section is concerned to inquire whether, in a real sense, the applicant knows the nature of his or her injury and its broad extent. Having regard to the policy of the legislation it is apparent that it is designed to afford relief to an applicant who is either unaware that he or she has suffered an injury or is aware that he or she has suffered an injury, possibly with continuing consequences, but is unaware of its complications, implications or potentially serious consequences. By way of example, an applicant who was aware that a blow on the arm had led to continuing but moderate pain but who was unaware until years later that there were serious complications flowing from that blow (eg osteomyelitis) would remain unaware of the extent of the injury until the complications and consequences were drawn to his or her attention. His Honour went on to say [13] : The range of factual situations which may be encountered by the courts is so diverse that it would be overly optimistic and unwise, in my view, to attempt to provide a general formula by which the relevant inquiry may be answered. Rather courts should be concerned to analyse the facts in each case in order to determine whether the applicant knew the nature of the injury and, if so, in a broad way the extent of the injury, the nature of which is known. Practically speaking the resolution of the inquiry whether the applicant was unaware of the nature of the injury should throw considerable light on the task of resolving the second inquiry as to the extent of the injury. For instance, a finding that the applicant is aware that he or she has suffered a serious neck injury involving damage to the spine will, in general, provide an answer to the inquiries as to both nature and extent. In this context I would emphasise that the court is concerned not with the technical name or description of an injury but its effect, actual and potential, upon the applicant. 1. (1996) 39 NSWLR 13 at 20. 2. CRA Ltd (1996) 39 NSWLR 13 at 20-21.

Expectation as to the likely consequences of an injury is clearly an element in determining an applicant's awareness of the extent of the injury. When the relevant injury is a disease, the expectation of the applicant at the expiration of the limitation period as to the likely course of the disease will usually be determinative of whether he or she was aware of "the extent" of the disease for the purpose of s 60I(1)(a)(ii) of the Act. In Australian Iron & Steel Ltd v Connell [14] Dixon CJ said that a disease was "a pathological condition importing pathological and physiological incidents and consequences and liable to follow a course or some or one of courses more or less known or expected". But it is the applicant's expectation as to the course of the disease, not that of the reasonable person, that is relevant. Thus, if an applicant knew at the expiration of the relevant period that he or she suffered from a diseased spine, it does not necessarily follow that the person was aware of the "extent of personal injury" if eventually the disease caused the vertebrae to collapse. Whether the applicant was aware of "the extent" of the injury would depend on whether that person was aware that there was a real chance that the vertebrae would collapse as the result of the disease.

In Ditchburn v Seltsam Ltd [15] the New South Wales Court of Appeal held that early signs and symptoms may not constitute sufficient indication of the "nature and extent" of personal injury. In F J Walker Ltd v Webber [16] the same Court also stated that:

One can know "the nature and extent" of one's injury even if one is ignorant of the final form which it will take. Few plaintiffs ever know this, even at the time of trial, and it would be difficult to attribute to Parliament an intention that potential plaintiffs may completely disregard limitation periods merely because they are unable to predict their final state. These statements imply, correctly in our opinion, that an applicant may have been aware of the extent of his or her injury even though he or she does not expect all its precise consequences, for it is not necessary that the applicant should foresee the exact course of the disease or be aware of all its pathological and physiological incidents. If the applicant was aware that the injury would deteriorate, he or she may be aware of the extent of the injury for the purpose of s 60I(1)(a)(ii) even though the injury developed particular consequences that the applicant did not precisely foresee. As long as the consequences are of a kind that an applicant expected to occur, the applicant will be aware of the extent of the injury. The nature or extent of the injury is not synonymous with the precise pathology or consequences of the injury. Thus, the New South Wales Court of Appeal has held that an applicant who knew that he had a disc lesion that caused him great pain and that the condition could only be alleviated by a spinal fusion was aware of "the extent" of his injury although he was unaware "that his spinal cord nerves were caught in damaged discs" [17] . 1. (1989) 17 NSWLR 697 at 704, per Kirby P, with whom Hope A-JA agreed. This was reaffirmed by the New South Wales Court of Appeal in F J Walker Ltd (unreported, 16 November 1989). 2. Unreported; NSW Court of Appeal; 16 November 1989, at 4. 3. CRA Ltd (1996) 39 NSWLR 13 at 21, per Clarke JA.

If an applicant can satisfy the requirements of s 60I(1)(a) merely by proving a lack of knowledge at the expiration of the limitation period of all the later consequences of the injury, it will no doubt make the passage through the gateway in s 60I(1)(a)(ii) much easier than would be the case if "the extent" of an injury was determined by an objective test of reasonable foreseeability. But that does not necessarily mean that the number of successful applications will increase unduly. After the applicant gets through the s 60I(1) gateway, he or she must satisfy the court that it is "just and reasonable" (s 60G) to grant an extension of the limitation period. Under that provision, questions of what the applicant knew or ought to have known will often play a critical role in determining whether it is just and reasonable to extend the limitation period. It may not be just and reasonable, for example, to extend a limitation period if before the expiration of the period the applicant knew or ought to have expected most of the consequences of an injury. Unawareness of all the consequences may get the applicant through the s 60I(1)(a)(ii) gateway, but it will not guarantee a passage through s 60G.

The worker was unaware of the extent of his silicosis

The question then is whether Judge Johns was correct in finding that the worker was in fact unaware of the nature or extent "of [the] personal injury suffered". The expiration dates of the causes of action against each employer were:

Landora 12 July 1968 Auqal 31 March 1979 Commercial 15 August 1992.

The worker's awareness of the nature and extent of his injury at each of those dates was the critical issue.

Determining his awareness of "the extent" of his silicosis at the expiration of each of the limitation periods, however, is not easy. To a large extent this is the result of the failure of all parties to adduce or to attempt to adduce precise evidence concerning the worker's knowledge of the extent of his silicosis. His awareness of "the extent" of his silicosis at the expiration of the limitation periods applying to each employer was never explored. All parties were content to rely on general questions such as "Were you aware in the 1980s as to what to expect in respect of deterioration of your condition, the rate of deterioration?" to which the worker replied "I was unaware". He was not asked any questions as to what his doctors had told him as to the likely effects of his disease. Moreover, although his progressive massive fibrosis was diagnosed in 1982, he was not asked when, if at all, he became aware of it.

Despite the generality of the worker's evidence, no proper basis exists for rejecting the finding of Judge Johns that the worker believed that his condition "would remain static and that it would not necessarily deteriorate further". It is true that the worker knew in 1978 that his disability had increased from 10 per cent in 1971 to 40 per cent in 1978 and that by 1982 he knew that it had increased to 50 per cent, and by 1985 to 60 per cent. Moreover, at the commencement of 1986 he knew that it had increased to 70 per cent and later that year he was assessed as being totally unfit for work. But this knowledge is not necessarily inconsistent with the worker being unaware in 1979 or 1986 that his condition would deteriorate to the extent that it had at the time of the application. This is particularly so in relation to the expiration of the limitation period against Auqal in 1979.

Judge Johns was entitled to be sceptical of the worker's evidence that he believed that his condition would not necessarily deteriorate further. The objective facts indicated that he knew that his condition was getting worse each year and that by 1979 he ought to have known that there was a very strong probability that his disease would permanently disable him. He also told a doctor in 1991 that his shortness of breath had become apparent in 1975 and had been "steadily progressive ever since". He also knew from the Dust Diseases Board assessments that his disability was rapidly becoming worse. But Judge Johns accepted his evidence. Significantly, there was no evidence as to what his doctors told him about the prognosis of his disease. In those circumstances, it is impossible to set aside the trial judge's findings based upon the worker's evidence that until about 1986 he believed that his condition "would remain static and that it would not necessarily deteriorate further". Nor is it possible to set aside the finding that the worker was unaware of the extent of his injury at the expiration of the various limitation periods.

The medical evidence established that silicosis is an idiosyncratic disease affecting individuals differently in each case, thereby making prognosis difficult. The worker stated at the trial that he was unaware during the 1970s and 1980s of the rate at which his condition would deteriorate and that he was unaware at what rate his health would continue to decline in the future. He said that it was not until late 1985 that he began to realise the severity of his injury, although he conceded that by 1978 he was aware that his "condition carried with it a real chance that it would continue to worsen". No doubt it was this evidence that the trial judge had in mind when he found that it was not "at least until some time after 1986" that the appellant became aware of the nature or extent of his injury. Importantly, however, it was not until about 1987 that he began to demonstrate symptoms of depression and not until mid-1990 that he began to suffer from impotence.

The extent of the worker's condition had to be determined as at the date of the application. By that time the worker was not only fully incapacitated for work, he was also suffering from depression and impotence and his life expectancy was known to have been shortened. His depression and impotence were obviously unknown to him at the expiration of each limitation period. Consequently, those two matters by themselves entitled the learned judge to find that at the end of each period the worker was unaware of the extent of his injury as it existed at the date of the application.

Subject to the operation of s 60G, he was entitled to an extension of each limitation period because he was unaware of the extent of his injury at the expiration of that period.

Judge Johns found that it was "just and reasonable" (s 60G) to extend the limitation periods. No attack has been made on that exercise of discretion.

Effect of future benefits payable under the Dust Diseases Act

In assessing damages, Judge Johns deducted cash benefits made under the Dust Diseases Act but held that future benefits were not to be deducted from the worker's award of damages. The New South Wales Court of Appeal, however, held that an earlier decision of that Court [18] required a deduction for future benefits under the Dust Diseases Act although the Act had since been amended. In our opinion, the New South Wales Court of Appeal was correct in holding that the present value of the future benefits payable under the Dust Diseases Act was deductible from the worker's damages.

1. Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR(NSW) 120.

Both the administratrix and the employers agreed that whether these benefits were deductible was to be resolved by applying the principles enunciated by this Court in Manser v Spry [19] . In Manser, the Court held that, where legislation provides for payments in respect of an injury and is silent as to whether those payments are deductible from any subsequent award of damages in respect of that injury, any one of three matters may indicate whether the legislature intended that a deduction from the damages should be made. The matters are: (1) the financial source of the benefit; (2) the presence of a provision which requires the repayment of a statutory benefit if damages are awarded; and (3) the nature of the benefit [20] . The second of these three matters is absent from the Dust Diseases Act, so we turn to the other two.

1. (1994) 181 CLR 428 at 434-437. 2. See Manser (1994) 181 CLR 428 at 436.

If a legislative scheme provides for employees or for employers and employees to make contributions to fund benefits payable in respect of personal injury, there is a strong ground for concluding that the legislation did not intend that the benefit should be deductible from an award of damages for that injury. Such a scheme is to be likened to a personal injury insurance policy, the proceeds of which are not ordinarily deductible from an award of damages for an injury covered by the policy [21] . But the scheme set up by the Dust Diseases Act is not of that kind. Employees make no contributions to the fund from which benefits are payable.

The benefits provided by the Dust Diseases Act derive from the Workers' Compensation (Dust Diseases) Fund which is principally employer funded although the legislation provides that the fund may also be financed by "any moneys provided by Parliament for the purposes of the Fund" [22] . Employers falling within the scope of the legislation are obliged to pay premiums to their insurers who are then required to make contributions to the Work Cover Authority which, in turn, makes payments to the Dust Diseases Board. Those payments become part of the Workers' Compensation (Dust Diseases) Fund [23] . The scheme is different, therefore, from a statutory contributory pension scheme, funded by both employers and employees, the benefits of which are to be enjoyed by an injured person without reduction of his or her damages [24] . Here employers alone are the principal contributors to the fund that provides the benefits. It is difficult to conclude that Parliament intended that the employers should fund benefits paid for injuries suffered in the course of employment and at the same time have to make a payment by way of damages for those injuries. The financial source of the benefits therefore indicates that the benefits should be deductible from awards of damages in respect of injuries giving rise to the benefits.

1. s 6(1)(c) of the Dust Diseases Act. 2. See s 6 of the Dust Diseases Act. 3. See, eg, Parry v Cleaver [1970] AC 1; Smoker v London Fire and Civil Defence Authority [1991] 2 AC 502; Redding v Lee (1983) 151 CLR 117 at 138.

In Redding v Lee [25] , in a passage cited with approval in Manser [26] , Gibbs CJ said:

The conclusion that the benefit is intended for the plaintiff personally and not in reduction of the damages may more readily be drawn when it is seen that the receipt of the benefit is not dependent on the loss of wages or earning capacity for which the plaintiff claims damages (cf Parry v Cleaver [27] , per Lord Wilberforce) and is not intended to replace the lost wages or remedy the loss of earning capacity. But that is not the case here. The nature of benefits conferred by the Dust Diseases Act is that of compensation for economic loss suffered as the result of work injuries falling within the scope of that Act. The benefits are a form of workers' compensation payments. Section 8 prescribes as the rates of compensation payable to a person "totally or partially disabled for work from a dust disease" [28] the weekly payments set out in Div 2 of Pt 3 of, and Sch 6 to, the Workers Compensation Act 1987 NSW [29] in respect of workers employed "in or about a mine to which the Coal Mines Regulation Act 1982 applies" [30] . Section 8(3) specifically applies certain provisions of the Workers Compensation Act to awards under the Dust Diseases Act. Section 8(6) of the Dust Diseases Act also provides that a person who receives benefits under that Act cannot claim workers' compensation. The purpose of the payments, therefore, is "to remedy the loss of earning capacity" of the injured worker [31] . That being so, the nature of the benefit enjoyed under the Dust Diseases Act does not point to a legislative intention that the benefits should not be deductible from awards of damages in respect of injuries giving rise to those benefits. 1. (1983) 151 CLR 117 at 125. 2. (1994) 181 CLR 428 at 437. 3. [1970] AC 1 at 42. 4. s 8(1) of the Dust Diseases Act. 5. See s 1 of the Dust Diseases Act. 6. s 8(2) of the Dust Diseases Act. 7. Redding (1983) 151 CLR 117 at 125.

Consequently, the common law courts should regard benefits under the Dust Diseases Act as compensation for injury and as a substitute or partial substitute for wages lost. Because the fundamental rule in an action for damages for tort is that a plaintiff cannot recover an amount more than he or she has lost [32] , payments under that Act are deductible from any award of damages payable in respect of injuries that give rise to those benefits. Benefits receivable under the Dust Diseases Act are therefore deductible from any common law damages otherwise payable by an employer for injuries compensable under that Act.

1. Parry [1970] AC 1 at 13; Haines v Bendall (1991) 172 CLR 60 at 63; Manser (1994) 181 CLR 428 at 434-435.

The administratrix did not dispute that the New South Wales Court of Appeal was correct in holding that a single judgment should not have been entered against the three defendants. Their liability has to be apportioned.

The appeals should be allowed. The appeals to the New South Wales Court of Appeal against the assessment of damages should be allowed. Otherwise the appeals to that Court by Auqal and Commercial should be dismissed. The matter should be remitted to the Dust Diseases Tribunal to assess the damages to be awarded against the second and third defendants (Auqal and Commercial respectively) on the basis of the findings of and the evidence before Judge Johns. The administratrix did not appeal to this Court against the order of a new trial against Landora.