Lee v James Hardie & Co

The case of *Lee v James Hardie & Co* concerned an appeal to the High Court of Australia by the plaintiff, Mr Lee, against a decision of the New South Wales Court of Appeal. Mr Lee had brought proceedings against James Hardie & Co Pty Ltd (James Hardie) alleging that he had contracted asbestosis as a result of his employment with the company. The primary dispute revolved around the application of the *Limitation Act 1969* (NSW) to Mr Lee's claim.

The High Court was required to determine whether the primary judge had erred in finding that Mr Lee's cause of action was statute-barred. Specifically, the court had to consider the correct interpretation and application of section 14(1)(b) of the *Limitation Act 1969* (NSW), which deals with the limitation period for actions for personal injury where the injury was not immediately apparent. The central question was when Mr Lee's cause of action accrued, and whether he had commenced proceedings within the prescribed six-year period from the date of accrual.

McHugh and Heydon JJ, in their joint judgment, held that the Court of Appeal had erred in its interpretation of section 14(1)(b). They reasoned that the cause of action accrued not when Mr Lee first suffered damage, but when he first discovered, or ought to have discovered, the existence of the disease. Their Honours applied the principle that a cause of action for personal injury accrues at the time of the injury, but that the *Limitation Act* provides an exception where the injury is latent. In such cases, the limitation period runs from the date of discoverability.

The High Court allowed the appeal, setting aside the orders of the Court of Appeal and remitting the matter to the Supreme Court of New South Wales for determination of the remaining issues.