STATE RAIL AUTHORITY v GAUDRON

LIMITATION OF ACTIONS - EXTENSION OF LIMITATION PERIOD - LATENT INJURY - LIMITATION ACT 1969 (NSW) s60G, s60I, Sch 5 cl4.

In 1964, when he was eight years old, the respondent sustained serious injuries when his foot was run over whilst he was trying to board a moving train. In July 1993 the respondent filed a statement of claim, and a notice of motion seeking an extension of the limitation period. Christie DCJ dismissed the application for extension of time on the basis of the decision in Dedousis v Water Board (1992) 9 NSWCCR 417. That decision was subsequently overturned by the High Court. In March 1995 the respondent again made application to the District Court seeking an extension of time. Dent DCJ allowed the application in February 1997.

On appeal the appellants appealed on the following grounds:

(1) Dent DCJ erred in thinking that he had power to rehear an interlocutory motion already dismissed by Christie DCJ;

(2) the application for extension heard by Dent DCJ was out of time under Schedule 5, cl4(4) of the Limitation Act 1969 (NSW);

(3) Dent DCJ was in error in finding that the requirements of s60I(1)(a) had been satisfied as: (a) he had taken a significantly wrong date as the expiration of the relevant limitation period; and, (b) his finding in relation to the respondent's "unawareness" within the terms of s60(D(1)(a)(iii) of the Limitation Act was not in accordance with the decision of the High Court in Dedousis v Water Board (1994) 181 CLR 171; and,

(4) Dent DCJ erred in finding the respondent had discharged the onus laid down by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 886.

(1) Dent DCJ had jurisdiction to hear an interlocutory motion in proceedings in which an earlier interlocutory motion seeking a similar order had been dismissed: Forbes v Lindop (Unreported, New South Wales Court of Appeal, 17 July 1995).

(2) As a matter of substance the respondent's application for extension was within time. To put the position beyond doubt, the respondent is granted leave to amend the statement of claim to include the application for extension.

(3) Dent DCJ's finding that the requirements of s60I(1)(a) had been satisfied should not be interfered with as: (a) Schedule 5 cl4(5) is quite a deliberate extension of the width of the definition of limitation period in cl1(1); and,

(b) the evidence shows that the respondent was not aware of facts underlying heads of negligence particularised in his statement of claim, and Dent DCJ's finding of the respondent's "unawareness" within the terms of s60I(1)(a)(iii) was consistent with the decision of the High Court in Dedousis v Water Board (1994) 181 CLR 171; and,

(4) Dent DCJ took into account the various discretionary considerations which the High Court said had to be taken into account in Brisbane South Regional Health Authority v Taylor, and his exercise of discretion should not be interfered with.

Priestley JA This appeal concerns an accident which happened on 26 April 1964.

Mr P Gaudron, the respondent in the appeal, then almost nine years old, had been a passenger on a goods train which had stopped at a railway siding between Moree and Inverell. His father was the driver of the train. The respondent had got

off the train at the siding. He saw the train apparently moving off and tried to board it but slipped. The engine ran across his left foot. The injury to his foot was bad when it happened, led to worse consequences in following years, and has had a major disturbing effect on his life.

For reasons set out later, the respondent did not file a statement of claim seeking damages for his injuries from the corporate body responsible for the State Railways until 8 July 1993. This statement of claim was filed in the District Court at Lismore, No 49 of 1993. On the same day a notice of motion was filed in the District Court in Sydney, otherwise entitled in the same proceedings No 49 of 1993, asking that the limitation period for the bringing of the cause of action in the proceedings be extended pursuant to s60G(2) of the Limitation Act 1969.

This notice of motion was dismissed with costs on 9 February 1994 by his Honour Judge Christie QC of the District Court. The relevant law at the time was that explained by this court in Dedousis v The Water Board (1992) 9 NSWCCR 417. On November 16 1994 the High Court upheld an appeal reversing this court's decision in Dedousis and also overruling other decisions of this court which had been followed in Dedousis: see Dedousis The Water Board (1994) 181 CLR 171. After the High Court handed down its decision in Dedousis the respondent, on 24 March 1995, again made application to the District Court, seeking to have Christie DCJ's decision set aside, and asking again for an extension of time. This motion was granted by his Honour Judge Dent QC of the District Court on 10 February 1997.

Despite the specific reliance upon s60G(2) in the original notice of motion before Judge Christie, it seems that in the argument before him three different bases for extension were put forward, s58, s55 and finally s60G. These three sections all appear in Pt3 of the Limitation Act, headed Postponement of the Bar. S55 appears in Division 2 of Pt3 and s58 and s60G in Division 3 which deals with personal injury cases. S58 is in Subdivision 1 of Division 3 and has been in the Act from its beginning. The purpose of Subdivision 1 is to provide a procedure for the extension of limitation periods, based on the belated discovery of material facts: s57. S60G is one of the sections in Subdivision 2 of Division 3 (s60A to s60J). This Subdivision was inserted in the Act by amending Act No 36 of 1990 to provide a procedure for a five year extension of the three year limitation period for personal injury cases where the cause of action accrued on or after | September 1990: s60A. Schedule 5 of the 1990 Amending Act also made certain of the sections in Subdivision 2 applicable to certain causes of action that accrued before 1 September 1990: Schedule 5 cl4.

Judge Christie was of opinion that neither s58 or s55 furnished a basis for an extension. He then proceeded to deal in more detail with s60G, before finding against the respondent in regard to that section also. This appeal is concerned only with the s60G aspect of the case as dealt with by Dent DCJ.

S60G applies to causes of action accruing on or after 1 September 1990 claiming damages for personal injury for negligence, nuisance or breach of duty but to the exclusion of causes of action under the Compensation to Relatives Act 1897. S60G(2) authorises a court to order, "if it decides that it is just and reasonable to do so,... that the limitation period for the cause of action [referred to in subs(1)] be extended for such period as it determines".

The provisions of s60I are relevant to s60G applications. S60I(1) says that a court may not make an order under s60G unless satisfied that:

(i) did not know that personal injury had been suffered; or

URJ STATE RAIL AUTHORITY v GAUDRON (Priestley JA) 3

(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; 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 para(a)(i)-(iii)."

Schedule 5 inserted in 1990 as previously mentioned (and as emended by Act No 46 of 1993) is headed "Further Transitional Provisions" and effected substantial enlargement of the categories of causes of action in respect of which extension orders could be made under s60G. Provisions of Schedule 5 relevant for present purposes are the definition in cll of "limitation period" which

"means a limitation period fixed by an enactment repealed or omitted by this Act or fixed by or under a provision of this Act (including a repealed or omitted provision of this Act). "

Cl4 is headed "Existing causes of action for personal injuries may be extended where latent injury etc". The etc in the heading appears to be explained as being a repetition of the heading for Subdivision 3 (which includes s60F to s60J) the heading to which is "Discretionary extension for latent injury etc". The etc in this heading appears to be a shorthand reference to the purpose of Subdivision 3 as described in s60F namely

"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."

In light of the way the Limitation Act has been interpreted, and as Dedousis shows the etc in the heading to both Subdivision 3 and cl4 of Schedule 5 comprehends more than merely latent injury. This outcome conforms closely to the intention the Attorney General said lay behind the 1990 amendments in his second reading speech explaining the legislation: Parliamentary Debates, 8 May 1990, p2555.

"4.(1) S60G 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..."

(a) whether or not a relevant limitation period has expired:

(ii) before an application is made under either of those sections in respect of the cause of action; and

(b) whether or not an action has been commenced on the cause of action before 1 September 1990; and

(c) whether or not a judgment on the cause of action has, on the ground that a limitation period applying to the cause of action had expired before 1 September 1990, had been given (whether before, on or after that date);..."

"(4) The court may make an order under s60G or s60H, in relation to a cause of action referred to in this clause, if an application for such an order is made within:

(a) the period of three years referred to in s60I; or

(b) the period of three years commencing on | September 1990."

Subcl(5) is relevant to one of the two principal arguments in the present case, in that it appears to make a deliberate extension of the definition of "limitation period' in cll. Cl4(5) says:

"(5) For the purposes of this clause, a reference in Pt3 to a limitation period is to be read as including a reference to a limitation period as defined by this Schedule."

Some of these provisions had, at the time of Judge Christie's decision, been the subject of decision in this court. In Electricity Commission (NSW) v Plumb (1992) 27 NSWLR 364 it had been held that the power of a court to grant an extension pursuant to the provisions of s60G and cl4 of Schedule 5 was confined to cases of latent injury as defined in s60F. In its approach to Subdivision 3 this court treated s60F as a primary substantive provision.

In James Hardie & Co Pty Ltd v Wootton (1990) 20 NSWLR 713 it had been held that where a cause of action accrued before 1 September 1990 did not satisfy the requirements of s60I, an application for extension could be granted pursuant to cl4(4)(b) of Schedule 5 provided only that it was "just and reasonable to do so" in accordance with s60G. This appeared to make the situation simpler in regard to causes of action accruing prior to 1 September 1990 than in regard to those accruing after that date in respect of which it would only become open to a court to consider whether an extension could be granted if the requirements of s60I were fulfilled.

Both of these decisions were followed and applied in this court in Dedousis. The court decided the case on the basis that the applicant for extension (because he was applying in respect of a cause of action accruing before 1 September 1990) need not satisfy the court of the matters appearing in s60I (Wootton) but that he must still fulfil the requirement of s60F of showing unawareness "of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time" (Plumb). Clarke JA, who wrote the principal opinion, then considered whether the applicant had established that he was unaware of the extent or cause of his injury at the relevant time.

For the appellant applicant for extension it had been argued that "cause" in s60F meant the legal cause in the sense that the injury was the result of a breach of duty. This was not accepted. Clarke JA said that he preferred the view that the inquiry was directed at the applicant's awareness of the factual cause of the injury. He also said:

"Tn saying this I am not unmindful of the fact that if the person drafting s60F had wished to condition the exercise of discretion under the section upon lack of awareness of the connection to which I have referred that person could easily have done so. For instance, there is no apparent reason why the section could not have followed a similar form to s60I." (at 425)

He then held that the appellant was well aware of the cause of his injury, as a matter of fact, and that was all that was required to defeat an application under s60F. He added:

"T would reach the same result on the facts of this case even if the test for which the appellant contends should be applied. In other words I am not satisfied on the evidence which was given by the appellant himself, and which was the only evidence on the issue, that he was unaware of 'the connection between the personal injury and the defendant's act or omission'. I have earlier set out portion of his evidence. There he concedes that he knew his loss of hearing was caused by the noise of the jack hammers and that the ear-muffs with which he was provided were inadequate.

URJ STATE RAIL AUTHORITY v GAUDRON (Priestley JA) 5

What he did not know was that those facts, if true, gave him a good cause of action. In Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, it was held in relation to s57B (as it now is), that ignorance of the existence of a cause of action was not relevant and, although there are somewhat different considerations relating to s60F, both sections are concerned with ignorance of the existence of facts rather than legal conclusions. In my opinion the appellant failed to show that he was unaware of the connexion between the injury and his employer's failure to provide him with proper ear-muffs." (at 425-426)

The appellant Mr Dedousis therefore failed in his application for extension. His appeal to the High Court was successful to the limited extent that the orders made against him were set aside and the matter was remitted to the District Court to consider whether Mr Dedousis had been unaware of the matter set out in s60I(1)(a)(iii). This had not been considered specifically by the lower courts. In the joint reasons of the High Court judges who heard the case (Deane, Dawson, Toohey, Gaudron and McHugh JJ) the following points were made:

Plumb had been wrong in attributing primacy in Subdivision 3 to s60F. It was no more than an introductory provision indicating the purposes of the Subdivision and providing a summary of the effect of the substantive provisions of the Subdivision. The reference in s60F to the requirement that a plaintiff be "unaware of the fact, nature, extent or cause of the injury etc" was summarising the provisions of s60I(1)(a). The provisions of that subsection had to be satisfied before a court could make an order under s60G which was the primary substantive provision in Subdivision 3.

Wootton was also wrong in saying that, in relation to causes of action accrued before 1 September 1990, the court could make an order under s60G although the provisions of s60I were not satisfied.

The result was that an applicant for extension in respect of a cause of action accrued before 1 September 1990 had to satisfy the requirements of s60I(1)(a) and then satisfy the court that the application for extension was brought within the time limit specified in either cl4(4)(a) or cl4(4)(b) of Schedule 5.

The application of the High Court's construction of the relevant provisions led to the result in the case before them which I here set out in full as they described it, because, subject to an argument by the appellant in the present case yet to be considered, it seems to fit precisely the circumstances of the present respondent:

"In the present case, the plaintiff's cause of action against the defendant in negligence accrued, on any view of the evidence, at some time prior to his being placed on light duties in 1981. The plaintiff made his application for an extension of the limitation period applicable to his action in 1992. Consequently, the plaintiff has to rely on cl4 of Sch 5 in order to bring his application for an extension within sub-div 3. Because the plaintiff 's action falls within cl4(1), he is entitled to seek an exercise of the court's discretion under s60G(2) to extend the relevant limitation period. Further, because the plaintiff s application falls within cl4(4)(b), he is taken to have met the time requirement laid down in s601(1)(b). However, the plaintiff is not entitled to any order under s60G unless the court is satisfied that he was unaware of at least one of the matters referred to in s60I(I)(a)." (at 180),

The next point was that because the District Court and the Court of Appeal had both focussed on the word "cause" in s60F and had given it a narrower meaning than the words "connection between the personal injury and the defendant's act or omission" in s60I(1)(a)(iii) they had never directed themselves

to a question necessary to be decided before the application for extension could be dismissed. It was common ground that the applicant could not succeed in showing either of the qualifying matters set out in s60I(1)(a)(i) and (ii), so that his only chance was to show that he qualified under subpara(iii), and this had never been properly considered.

It was this sequence of reasoning that led the High Court to remit to the District Court the question whether the applicant was unaware of the matter set out in s60I(1)(a)(iii). They added,

"Tf that court concludes that the plaintiff was unaware of the connexion between his injury and the defendant's act or omission at the relevant time, it must then decide whether it is just and reasonable to extend the limitation period under s60G(2)." (at 182)

Before stating their conclusion in the matter, the High Court had dealt with an alternative argument on the part of the Water Board. That was to the effect that both Mahoney JA and Clarke JA in their separate reasons had indicated that if the test to be applied was of the kind required by s60I(1)(a)(iii) then Mr Dedousis would in any event fail. I have earlier set out the concluding two paragraphs of Clarke JA's reasons in which he expressed this opinion. Mahoney JA, more briefly, had stated substantially the same view.

The High Court did not think that these views settled the matter. One of the appellant's main arguments in the present appeal turned on the reasons the High Court gave for this opinion. The easiest way for me to explain later in these reasons my own view on this argument will be by reference to the full text of what the High Court said which gave rise to it. They said that the difficulty with the approaches of Mahoney JA and Clarke JA to the conclusion that Mr Dedousis would fail, even on the broader construction approach he advocated, was that

"they take an unduly restricted view of the acts and omissions upon which the plaintiff relies. The plaintiff's allegation of negligence is much broader than an assertion that the defendant failed to supply him with proper ear-muffs, as Clarke JA appears to assume. In the plaintiff's statement of claim, the particulars of negligence include, inter alia, allegations that the defendant failed to devise, institute, supervise and maintain a safe system of work; failed to adjust or modify the environment, equipment, plant and machinery in or with which the plaintiff had to work so as to reduce noise levels; failed to warn or educate the plaintiff about the dangers to health and hearing arising from the use of the equipment he would be required to use and from exposure to excessive noise levels; failed to issue, properly fit, and supervise the use of adequate personal hearing protection; failed to conduct workplace sound level surveys; and failed to carry out hearing tests on the plaintiff.

It is true that s601(1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. However, if a plaintiff alleges that his or her employer has failed to provide him or her with a safe system of work and is able to establish that he or she was not aware that there was a safer alternative system, then the proper conclusion is that the plaintiff was 'unaware of the connection between the personal injury and the defendant's act or omission' within the meaning of s60I(1)(a)(iii). On that hypothesis, the relevant act or omission is the employer's failure to provide the safer alternative system or to take suitable precautions.

The plaintiff asserts in his affidavit of 15 April 1992 that he was not aware until he spoke to his solicitors in May 1991 that the Water Board could have protected his hearing by providing him with proper hearing protection, by testing his

URJ STATE RAIL AUTHORITY v GAUDRON (Priestley JA) 7

hearing regularly, and by taking steps to reduce the noise levels of the machinery he was operating. Both the District Court and the Court of Appeal failed to evaluate this claim." (at 181-2)

The underlined sentence is one to which particular argument was directed in this appeal.

It was against the background of the Dedousis approach to the construction of relevant limitation extension sections that Dent DCJ had to decide this case. He began by dealing with a number of procedural and jurisdictional objections raised against the respondent's case, holding that none of them stood in the way of his deciding whether he should make an order extending time under s60G.

He then listed in numbered paragraphs the facts established by the evidence before him upon which he should decide whether to exercise discretion under s60G for or against the respondent. None of the primary facts themselves in the numbered list is the subject of dispute in this appeal, and I will set them out, leaving out the first four, the gist of which already appears in the second paragraph of these reasons.

On the date in question the plaintiff was being transported from Moree back to Inverell on a train belonging to the respondent driven by his father, which was a goods train, and it seems beyond argument on the way the matter was litigated before me that his presence on that train was contrary to Railways Regulations.

At approximately 11.55 am in the morning the father stopped the train at a little railways siding called 'Mount Russell' between Moree and Inverell. The father told the applicant to get off the train and go and get some water to boil the billy. The applicant did not realise at that time that it was also his father's duties to engage in some shunting operations at Mount Russell. Having obtained the billy of water the applicant saw the train moving, and believing that he was being left behind he ran after the train. He jumped onto the steps of the train as it was moving spilling some water from the billy and then slipped and jell, and the locomotive ran across his left foot. The guard on the train that day was a Mr Harry Marshall, who on affidavit has asserted that he did not see the subject accident occur.

The injuries to the applicant's left foot were grave, requiring amputation surgery and a further operation at Inverell Hospital, and thereafter a transfer to the Children 's Hospital on the 9th May, 1964, and thereafter to the Far West Children's Hospital at Manly until 16th December, 1964.

Between 1964 and 1972 the applicant was required to undergo four further amputations to his left leg

The Commissioner for Railways was aware of the subject accident and enquired into it.

In the period of twelve months during which the limitation period ran against the applicant, his sister who was a law student at the time, and his mother who worked in an accountant's office in Inverell, made enquiries into the prospects of the applicant bringing a claim for his injuries. These enquiries were made informally of practitioners of law and not by way of a direct retainer of any member of the legal profession. The sister enquired of lecturing staff at the Law School of the University of Sydney and was told that any action against the Department of Railways would be unsuccessful. The mother made indirect enquiry through her employer of Senior Counsel and was told that any action against the Department of Railways would cost thousands of dollars, and that it would be likely that the applicant would get nothing out of it.

The applicant's father is now dead, but it is quite clear that he would have been in an impossible position had the mother or some other next friend commenced proceedings against the Commissioner for Railways to recover damages, for the father was liable to have been joined by the Commissioner as a tort feasor, against whom indemnity could be sought, and as the law stood at that time he would have been liable to have been joined as a contributing tort feasor against whom indemnity was sought.

There is sufficient hearsay and anecdotal evidence in the material before me to draw the inference that following upon the Commissioner for Railways enquiring into the accident, a view was taken that the father had been sufficiently punished by the injury to his son, and no disciplinary action was taken against him, and an understanding was reached that when the son was of employable age a job would be available for him in the Railways Department. This informal dealing with the position of this grievously injured applicant was not one to which he could be a party in any sense because of his youth, and although it is not for my decision, it does not appeal to me as a compromise of his rights against the Commissioner for Railways for its vicarious liability for the torts of its servants which would have appealed to any Judge as approvable as being in the interests of the infant.

It hardly needs saying that at the age of nine years and some nine months, when the notice before action preconditioned to commencing an action within twelve months after the tort expired, the plaintiff within the meaning of the Limitation Act, was unaware of the connection between his personal injury and the defendant's act or omission, and unaware of the extent of the personal injury that he had suffered, in the sense that he could not have as a child have been aware of the further surgical procedures that would procure further amputations of his leg over the ensuing years.

About the age of sixteen years the plaintiff was informed by his father that he was guaranteed a job with the Department of Railways when he left school, and on leaving school he applied for apprenticeship with the Department, but was denied a trade on medical grounds. In due course he was offered a job in the Moree office as an office clerk which he accepted.

The applicant remained employed in the Department of Railways and later the State Rail Authority for a fifteen year period until resignation in 1985 following upon many relocations around the State of New South Wales which were disruptive of his family.

Although the plaintiff grew up to early manhood in the belief that the subject accident was his own fault he always had what he described as a 'feeling at the back of his mind ' that he had a claim. Accordingly in 1977 whilst consulting suburban solicitors at Strathfield for other purposes, he sought advice as to his rights to claim personal injury damages against the Department of Railways and was told that he had no claim and that his rights had expired in 1970. This wrong advice is the subject is the subject of other proceedings, which I am advised are hedged round with great difficulties.

Upon resignation from the State Rail Authority in 1975 the applicant and his wife purchased a small mixed business at Moree, but had to close its doors in less than twelve months on medical advice, as the applicant was advised that if he stayed working on his injured left leg he would lose the whole leg.

Since that time the applicant has been an invalid pensioner.

URJ STATE RAIL AUTHORITY v GAUDRON (Priestley JA) 9

It was not until the applicant approached his present solicitors shortly before the filing of a statement of claim herein that he received advice from Mr Kinsella of Counsel that he had a claim and the right to seek an extension of the limitation period which had previously barred the making of that claim.

Although it would appear from affidavit evidence filed on behalf of the respondent, that the respondent has now destroyed its records after transferring records to a computer, it was clear from the conduct of the application before me that there is no real dispute that the applicant suffered his injuries as he has described them in his affidavits in these proceedings and in evidence."

From this point Dent DCJ continued with numbered paragraphing although he moved from matters that were principally factual to factual matters mixed with statements of his opinion relevant to the discretion he eventually decided to exercise in favour of the respondent. It is expedient to set these paragraphs out also:

"21. I concur with the view of Judge Christie that he has a very strong claim, and the submission of his Senior Counsel that it is a very large claim.

It is against this background that I consider the prejudice to the respondent should an order extending the limitation period be made. Such an order would remove the windfall effect of the limitation period being applied against the applicant's rights. It is clearly the case that this is an old action, but at the time of the matter being argued before me, it was clear that the train guard on the train at the time of the accident still survived, and the Commissioner had access to persons who remembered the accident to the applicant.

At the time of the accident the Commissioner for Railways was in a very strong bargaining position; ie the belief of the applicant's mother that the applicant's father (now deceased) would have lost his job had action been brought against the Commissioner for Railways in respect of the subject accident. It was also, of course, in a position whether this was appreciated by the applicant "s father or not, to claim indemnity against him personally in respect of any damages that it became liable to pay to the applicant arising from its vicarious liability for the negligent acts and omissions of its servants, who would have included the applicant's father.

In my view the limitation of access to records in respect of the accident is a neutral factor as the destruction of records was a voluntary act. It is highly likely that the passage of time, the death of the father, and the transmission of his home to a surviving joint tenant, the plaintiff's mother, has effectively removed any indemnity claim it could have made against the father.

The respondent can hardly argue in this case that the applicant slept on his rights. On the first occasion he enquired as to what his rights were, he was told that he had none, and at the first opportunity that he was made aware that he had rights, he commenced the present action against the respondent, and made an application for the extension of the limitation period.

I have in effect to engage in a balancing exercise to determine against the above background whether in my judgment the plaintiff/applicant has discharged the onus establishing that which was just and reasonable that he be allowed an extension of time in which to bring the action now before the court. In my view he has. It was no fault on his part that led to his not commencing an action to assert his rights until the current proceedings were commenced. He was an infant at the time when his remedy was barred. He was the child of parents who were not in a f seal position to enforce his rights on his behalf, and in respect of one parent, she was actively discouraged by what she accepted the Queen's Counsel

advised from seeking to bring any claim on the child's behalf One has to recall that in 1964 the legal profession was not particularly proactive in pursuing the rights of those who could not afford the pursuit being taken. On the other hand, the respondent in these proceedings was and has always been in possession of knowledge and advice that it was subject to an unsatisfied obligation in respect of this applicant's injuries, and at the relevant time in 1964 and 1965, in a very powerful bargaining position as far as the applicant was concerned. The injuries sustained here were very serious, and have never been compensated for in a manner which would have won the approval of the court in dealing with the rights of an infant.

Accordingly on the motion before me I order that the limitation period which. operated against this plaintiff be extended until the 9th July, 1993, so as to permit the maintenance of the present action, and I further order that the costs of the motion be costs in the cause."

In the appeal not all the matters argued before Dent DCJ concerning procedure and jurisdiction were raised again.

The first ground of appeal went on the basis that Dent DCJ had purported to rehear the interlocutory motion already dismissed by Christie DCJ and that he erred in thinking that he had power to do so. The court suggested to counsel that the basis upon which Dent DCJ appeared to have been operating was that he had jurisdiction to entertain a motion for extension because Christie DCJ's decision was not final. Counsel fairly responded to this that if that was the right interpretation of what Dent DCJ had done then it u as probably unexceptionable, subject to some other distinct arguments about timing such as were raised in ground 2 of the notice of appeal.

It seems to me quite clear that Dent DCJ was exercising jurisdiction to hear an interlocutory motion in proceedings in which an earlier interlocutory motion seeking a similar order to that now being sought before him had been dismissed. It is true that when the documentation relating to the motion is looked at some confusion is manifest as to what the respondent was asking the court to do. However, Dent DCJ's reference to this court's unreported decision in Forbes v Lindop (Kirby ACJ, Clarke JA and Sheller JA, 17 July 1995) in my view leaves no doubt about the jurisdiction Dent DCJ was, in the end, exercising; the decision also is authority, if authority were necessary, for the view that Dent DCJ did, in law, have the jurisdiction he said he was exercising.

The second ground of appeal raised the question whether the application for extension heard by Dent DCJ was within the words of Schedule 5 cl4(4) which permitted an application to be made, relevantly, within the period of three years commencing on | September 1990. The application before Christie DCJ had been in time, having been filed on 8 July 1993 in the District Court in Sydney with the same number as the statement of claim filed on the same day in the District Court at Lismore. If the application had been framed as part of the statement of claim the present question could not have arisen. If the date of the filing of the notice of motion heard by Dent DCJ governed the matter, then the respondent would have been out of time under Schedule 5 cl4(4) as the date of that filing was 23 March 1995. (Para(a) of subcl(4) was not argued.) A question was asked of counsel whether the respondent could have included the application for extension in the statement of claim and he agreed there was no reason why not.

URJ STATE RAIL AUTHORITY v GAUDRON (Priestley JA) 11

On that assumption it seems to me that as a matter of substance the respondent was, within the words used in cl4(4)(b), within time. In the course of the appeal counsel for the respondent, in order to put the position beyond doubt, sought leave of the court to amend the statement of claim by including the extension application previously in the notice of motion filed along with the statement of claim, in the statement of claim, which on the assumption I am making the court undoubtedly has power to permit the respondent to do. Counsel for the SRA argued that the court should not grant such leave to amend, but as I do not see any substantial prejudice caused to the SRA by allowing such an amendment and as in my view it would permit the form to be brought into line with the substance, I would permit the statement of claim to be amended as asked.

The third ground of appeal was that Dent DCJ was in error in finding the respondent was unaware of the nature or extent of personal injury suffered or was unaware of the connection between the personal injury and the appellant's act or omission at the expiration of the relevant limitation period or at any relevant time before or after that expiration when proceedings ought reasonably to have been instituted. Under this ground of appeal two separate matters were argued.

The first was that Dent DCJ had taken a significantly wrong date as the expiration of the relevant limitation period. The appellant based this submission on paral3 of Dent DCJ's numbered list of findings reproduced above. The respondent's written submissions to this court annexed a copy of written submissions made to Dent DCJ, (and repeated in this court). In them it was argued that the relevant limitation period was one year from the date of the accident, by reason of s27 and s28 of the Transport (Division of Functions) Act 1932 and that this limitation period applied to infants (Ravot vy Commissioner for Railways (1965) 83 WN(NSW) (Pt1) 527 was referred to).

The submission then continued that when this relevant limitation period "in all probability" expired, the respondent, then eight or nine, could not have known the things listed in subpara(i), subpara(ii) and subpara(iii) of s60I(1)(a), certainly not all of them.

The reason for the "in all probability" phrase in the submission was that it was recognised for the respondent that the relevant limitation period referred to in s60I(1)(a) might not be that which had expired pursuant to the Transport (Division of Functions) Act 1932 but that flowing from s14 and s52 of the Limitation Act. The written submission therefore put the alternative submission that if the relevant limitation period expired after the respondent had obtained his majority he was still then clearly unaware of those matters.

Although it is plain enough from para13 in his findings that Dent DCJ accepted the first submission, it also seems clear that some of his later findings were directed to the alternative submission that had been made to him on this point. Those are the findings in paral3, paral6, paral9 and para25. These were not as explicit as those directed to the earlier date but some of them at least can only have been put into the judge's numbered findings because of their relevance to the position at the date of expiration of the alternative possible relevant limitation period. Also they were made against the background that the respondent had not been cross-examined on various paragraphs of his affidavit.

The argument about which is the relevant limitation period for the purposes of s601(1)(a) turns on what happened in a sequence of statutes which dealt with statutory bodies which, broadly speaking successively performed the same function as the appellant has performed since the Transport Authorities Act 1980 came into operation. The effect of the changing legislation, so far as relevant to

the present case, was dealt with in detail in State Rail Authority v Hammond (1988) 15 NSWLR 395, a decision of this court which the appellant in its notice of grounds of appeal asserted was incorrect. However, that ground of appeal was abandoned and instead the appellant relied on aspects of that decision and an earlier decision of this court which it followed, Sovereignton Pty Ltd v Public Transport Commission (1980) 1 NSWLR 243. The argument therefore proceeded on the footing that these were standing decisions of the court which should be followed.

The effect of the two decisions was that liabilities of its predecessor bodies passed to the appellant but not defences available under the earlier statutes. As Kirby P (with whom Hope and Mahoney JJA both agreed) said in Hammond, "The only defences available to the SRA are those which it enjoys in its own right" (at 404).

As I understand the argument that was put for the appellant in this case this meant that the appellant was able to rely on the Limitation Act as a statute of general application. This in turn meant that the general limitation applicable to cases such as the respondent's applied, subject to the suspension (by s52) of the running of that period during the disability of minority. The argument then was that on the materials before Dent DCJ the respondent could not have satisfied him of the lack of knowledge and awareness required by s60I(I)(a) when that limitation period ran out.

In my view this argument fails because Schedule 5 cl4(5) which, as mentioned earlier, appears to be a quite deliberate extension of the width of the definition of limitation period in cl1(1) seems to me, because of the width brought about by that extension, to include limitation periods such as that under the Transport (Division of Functions) Act 1932.

If that conclusion be right then I do not think this court should interfere with Dent DCJ's para13 finding. Particularly in the light of Dedousis as I will seek to explain it in a moment, that finding seems to me to be justified.

Counsel for the appellant took a different view of Dedousis from that which I have just stated. He focussed on the underlined sentence in the passage from Dedousis set out above (at 11 and 12) and asserted that that sentence demonstrated that the High Court had made it clear that the unawareness referred to in s60I(1)(a)(ii) was entirely concerned with unawareness of facts. Since the respondent at all times knew the fact of the train having run over his foot he was at all times aware of the entirety of the connection between the injury to his foot and the appellant's act or omission.

In my opinion what the High Court was saying in the relevant passage was not so simple as counsel contended. In the passage there was first of all a reference to all the particulars of negligence given in the plaintiff's statement of claim. In the final paragraph of the passage reference was made to evidence of the plaintiff that he was unaware of matters going directly to the last three heads of particulars in the list of particulars. The last sentence in the passage indicates that the High Court were of the view that if that assertion were accepted then the plaintiff would have shown that he was unaware of the connection between the personal injury and relevant acts or omissions of the defendant.

In the present case the evidence shows that the respondent was aware of the physical facts concerning the train's having run over his foot, but also supports the conclusion that he was not aware of facts underlying other heads of negligence particularised in his statement of claim, on one view of the evidence, at any tune before the hearing of his motion for extension of time before Christie

URJ STATE RAIL AUTHORITY v GAUDRON (Brownie AJA) 13

DCJ. His evidence before Dent DCJ about this, which Dent DCJ appears to have accepted, shows that until that time he had always thought his father was solely to blame for the accident and had not been aware of aspects of tortious liability for which the appellant might be responsible collaterally to his father's involvement in the accident: see his answers in cross-examination on | September 1995; the particulars of negligence in the statement of claim; the affidavit of the guard on the train at the time of the accident, especially para6; bearing in mind that the affidavits before Christie DCJ were also before Dent DCJ, but the cross-examination on them was not.

On the view of Dedousis which I think is the correct one, this seems to me to put the respondent here in the same position as Mr Dedousis was, with the added advantage that there is a finding in the respondent's favour on the disputed factual matter.

It follows from this in my view that the ground of appeal with which I am presently dealing fails, and fails whichever be taken as the correct relevant limitation period.

Also I note that although it was not argued before us, acceptance of the evidence given in cross-examination before Dent DCJ, and its implications would appear to put the respondent's application in time within s60I(1)(b)

As earlier mentioned the fifth ground of appeal was not pressed. One consequence of that was that the sixth ground of appeal then became in substance the same as the fourth ground, with which I have just dealt.

The seventh ground was that Dent DCJ erred in finding the respondent had discharged the onus laid down by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 886. Dent DCJ referred to this case and as I read his reasons, took into account the various discretionary considerations which the High Court pointed out had to be taken into account before arriving at his conclusion. Additionally, in the present appeal counsel for the appellant (to my mind fairly) said that the s60G issues were not under challenge if the appellant's legal points otherwise failed.

The case therefore does not seem to me to be one in which this court should interfere with Dent DCJ's exercise of discretion.

There was an eighth ground of appeal, couched in general terms which did not raise any matters not already dealt with.

In my opinion the appeal should be dismissed with costs.

Meagher JA In this matter I have read the judgment of Priestley JA. I agree with the orders he proposes, and with his reasons.

However, I would like to add one thing. The judgment of the High Court in Dedousis v The Water Board (1994) 181 CLR 171, which his Honour followed, as he had to - leads to two rather anomalous results: first, that the limitation period in personal injury cases is almost infinitely extendable; and secondly, that whether an extension is or is not available depends largely on the dexterity with which the plaintiff s claim is drafted. I doubt if Parliament intended either of these results. Neither would occur if Clarke JA's views in Dedousis v The Water Board (1992) 9 NSWCCR 417 had prevailed.

Brownie AJA I agree with the reasons for judgment of Priestley JA, and wish only to add one comment, concerning the matter mentioned at p23 - p24 of his Honour's judgment.

An applicant for an extension of a limitation period, relying upon cl4 of Schedule 5 and s60I(1)(a)(ii) of the Limitation Act, needs to establish a lack of awareness of the connection between the personal injury in question and the defendant's act or omission. This is not established merely by some ingenious pleader drafting a Statement of Claim containing multiple allegations of breach of duty, or describing one breach of duty in a number of different ways, and by the applicant then deposing in general terms to a lack of awareness of the matters covered by the pleading and particulars, as distinct from an awareness of such matters as the happening of the accident in question, and generally how it happened. Rather, as happened in this case, the applicant must adduce evidence of a lack of awareness of the relevant facts.

Counsel for the appellant: DE Grieve QC/ TJ Clarke Solicitors for the appellant: Stone and Partners

Counsel for the respondent: JJ Garnsey QC/ BE Kinsella