Mazzeo v Caleandro Guastalegname & Co

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.5340 of 1999

RITA MAZZEO
	Appellant
v.
CALEANDRO GUASTALEGNAME & CO.	Respondent

---

JUDGES:	WINNEKE, P., TADGELL and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 October 2000
DATE OF JUDGMENT:	12 December 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 230

---

LIMITATION OF ACTIONS – Negligence - Personal injuries – Section 5(1A) Limitations of Actions Act 1958 – Whether plaintiff has to know that causative “act or omission of some person” was wrongful or negligent.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. R.J. Stanley, Q.C. and Mr. A.D.B. Ingram	Holding Redlich
For the Respondent	Mr. R.P. Gorton, Q.C. and Mr. N.G. Ross	Phillips Fox

WINNEKE, P.:

I agree with Chernov, J.A. that this appeal should be allowed on the ground that s.5(1A) of the Limitation of Actions Act 1958 (“the Act”) does not operate to permit such cause of action as the appellant had against her former employer to survive. In my view those words of the section which provide that:

“… the cause of action shall be taken to have accrued on the date on which the person first knows –
(a) that he has suffered those personal injuries and
(b)that those personal injuries were caused by the act or omission of some person.”

were, contrary to the view taken by the trial judge, satisfied more than 6 years before July 1993. Subject to any extension being granted by the Court pursuant to s.23A of the Act, the appellant’s cause of action was statute barred by operation of s.5(1)(a). In my opinion, the evidence which she gave clearly demonstrated that, by the end of 1984, she knew that she had suffered injury to her wrist and arm; and that those injuries were “caused”, in the relevant sense, by the acts or omissions of the employer Costas’ Builders Mart Pty. Ltd.

The trial judge found that s.5(1A) applied, on the facts of this case, to enable the appellant’s cause of action against her former employer to survive. He did so reluctantly because, as he said, he was constrained to so find by reason of authority binding upon him. He said:

“As I am constrained to find to the contrary, it is idle for me to express attraction to the … views of Hedigan, J. [in Hickey v. Womens & Childrens Health Care Network, unreported Supreme Court 11 June 1998] with respect to the interpretation of the expressions ‘disease’ and ‘disorder’ as set out in s.5(1A). It is equally idle to indicate that, free from authority, I would have taken the words ‘act or omission of some person’ at face value, and not considered the words so used involved that the requisite knowledge was of a wrongful or negligent act or omission of some person.” (my emphasis)

It seems to me that, against the background of these remarks of the judge, when regarded in the context of the submissions made to him, there is no substance in the contention made by the respondent to this Court that his Honour had concluded that, at all relevant times, the appellant did not know that an act or omission of her previous employer – as distinct from a wrongful or negligent one – had caused her injury. There was abundant evidence that she had such knowledge, but the only evidence to which the judge referred in reaching his conclusion was that touching and concerning whether she knew that the acts or omissions causing her injury were wrongful or negligent. When one reads the whole of his Honour’s findings, it is clear that he had concluded that the cause of action against Costas continued to survive by reason of s.5(1A) only because he was not satisfied that the appellant knew that her injuries were caused by acts or omissions which were “wrongful or negligent”.

I further agree with Chernov, J.A. that the words of s.5(1A) do not mean that a plaintiff has to know that the acts or omissions of some person, which caused his or her injuries, were wrongful or negligent before the cause of action is taken to have accrued. Rather, in cases such as the present, where the plaintiff has at all material times been compos mentis, the words mean that the cause of action predicated by the sub-section will be “taken to have accrued” when the plaintiff knows that he or she has suffered personal injury and knows that the injury has been caused by the act or omission of some other person. The cause of action referred to in s.5(1) has always been taken to accrue on the date when a person has been injured by the act or omission of another. The fact that the injured person does not know or believe that the act or omission of the other person causing the injury was negligent has not prevented time from running against the injured person[1]. It is usually only when that person has taken advice that he or she will become aware that the cause of action (which has already arisen) is actionable. That is why the six year limitation period has been set by the legislature as a compromise of fairness between the person injured and the person whose acts or omissions have caused the injury. Over the years it has been recognized that that balance of fairness can be distorted against the interests of the person injured, particularly in those cases of insidious disease caused by the act or omission of others, where the symptoms of the disease do not emerge for many years[2]. Accordingly, many State legislatures have sought to restore the balance by permitting injured persons to apply to the Court to extend the limitation period. In Victoria that was done by introducing s.23A into the Act in 1972, and by further amending the section in 1983 to give the Court an even wider discretion to extend the period. However the limitation period prescribed by s.5(1)(a) of the Act remains the “rule” for actions founded upon tortious conduct. S.5(1A) prescribes a legislative exception to that “rule” by providing that where a claim, founded (inter alia) upon negligence or breach of duty, is for damages in respect of personal injuries “consisting of a disease or disorder contracted”, then the cause of action “shall be taken to have accrued on” the date when the person injured first knows that he or she has suffered those injuries and that they were caused by the act or omission of another. Having regard to the framework of the Act, and in particular to the inter-relationship between the provisions of s.5(1A) and the provisions of ss. 5(1)(a) and 23A, it would, I think, be surprising if the legislature had intended that a word such as “wrongful” or “negligent” should be implied into s.5(1A)(b). I say that it would be surprising, because the sub-section contemplates that, irrespective of any prejudice to the potential defendant, the “limitation time clock” will not start to run until a date which may be many years after the date when the breach of duty occurred. In those circumstances, it is not readily to be assumed that the legislature intended that the cause of action does not accrue until the person injured acquires actual knowledge that the act or omission causing the injuries was “wrongful”, when the “general time limitation rule” provided for in s.5(1)(a) makes no such assumption.
[1]Cartledge v. E. Jopling & Sons Ltd. [1963] A.C. 758.
[2]cf. Cartledge’s case, supra.

The trial judge felt constrained to so construe s.5(1A), however, because that is how the sub-section had been interpreted in Perry v. The Royal Women’s Hospital[3] and Donnelly v. State of Victoria & Ors.[4]. In each of those cases, single judges of the Court (who, if I might say so, are very experienced in common law matters) had expressed the view that the limitation period referred to in s.5(1A) did not commence to run until the injured person first knew that the injuries had been suffered and also knew that those injuries were caused by the “wrongful or negligent” act or omission of another person. Perry’s case was a case of particular hardship because the retrolental fibroplasia causing the plaintiff’s blindness had resulted from acts or omissions of the Hospital and its medical staff more than 23 years before the matter came to the Court, and, as Beach, J. found, the hospital’s conduct had prevented the plaintiff from ascertaining facts material to the cause of the blindness. His Honour found that s.5(1A) applied because he concluded that the plaintiff was suffering from injuries “consisting of a disease or disorder contracted” and that he did not know before the relevant time that the acts or omissions causing the blindness were “wrongful”. His Honour said (at p.22):

“In my opinion this Court is justified in taking the view that the legislature intends that a liberal interpretation be given to the legislation, one which assists persons who have suffered injury through the wrongful and negligent actions of others rather than one which inhibits and restricts them.”

Under cover of this view of the intention of the legislature, his Honour said:
“In my opinion, to give any sensible meaning to sub-section (1A), the act or omission must be a wrongful or negligent act or omission. The person suffering the personal injury must not only know that his personal injuries were caused by the act or omission of some person, he must also know that that act or omission was a wrongful or negligent act or omission.”

[3]Unreported, Supreme Court of Victoria, 30 January 1991

[4]Unreported, Supreme Court of Victoria, 30 June 1994.

This interpretation of sub-section (1A) was followed by O’Bryan, J. in Donnelly v. State of Victoria. In that case the plaintiff claimed to be suffering from a psychiatric or psychological disorder as a consequence of being confined in State institutions in her early childhood which were said to be inappropriate to her status and in breach of the duties imposed upon those responsible for her care. The damage was said to have been caused by decisions made some thirty years before the matter came before the Court. The judge found that the “mental disorders” from which the plaintiff suffered were within the meaning of “disease or disorder contracted” as specified in sub-s. (1A) of s.5 and also found that she did not know that she was suffering from such disorder as required by sub-paragraph (a) of the sub-section. He also found that the requirement of sub-paragraph (b) of s.5(1A) was made out. He said:

“In my opinion, the construction placed upon sub-paragraph (b) by Beach, J. [that is, in Perry’s case] is correct and most apt for the present case. It is one thing for the plaintiff to believe that her emotional unhappiness was caused by her placement in [the particular institution]; it is another thing for her to know that the act of placing her there was a wrongful or negligent act on the part of the … Department.”

For the reasons already advanced, I agree with the conclusion reached by Chernov, J.A. that s.5(1A) does not prevent the limitation period prescribed by the sub-section from running until the plaintiff “knows” that his or her injuries were caused by the “wrongful or negligent” act or omission of “some person”. With due respect to the decisions of Beach and O’Bryan, JJ., to the contrary, I am not convinced that such an interpretation of the sub-section is warranted because, as Beach, J. said, “the Court is justified in taking the view that the legislature intends that a liberal interpretation be given to the legislation – one which assists persons who have suffered injury through the wrongful and negligent actions of others, rather than one which inhibits and restricts them”. True it is that the legislature was intending to avoid the harshness of the “general limitation period” in cases where the damages claimed were in respect of personal injuries consisting of “disease or disorder contracted” and, to that extent, to prescribe that the cause of action in respect of claims for such injuries would not be taken to accrue until the person injured knew, inter alia, that the injuries had been “caused by the act or omission” of some other person. However, it is quite another thing, as I have said, to postpone the “limitation time clock” pending knowledge of the injured person that such act or omission was “negligent” or “wrongful”. Such terms are not to be found in the sub-section and, in the light of the history leading to its introduction, are not necessary to give proper effect to it. In this respect, I find myself in agreement with the sentiments expressed by Hedigan, J. in Hickey’s case, supra, where his Honour said (at p.23):

“Moreover, I am less convinced than the Courts in Perry and Herschberg & Anor. v. Mula [unreported, Appeal Division of Supreme Court; 9 December 1993 per Southwell and O’Bryan, JJ.] that it was the intention of Parliament, or ought necessarily to be the interpretive approach of this Court, that a ‘liberal’ interpretation be given to the legislation simply because it is legislation to assist persons who have suffered injury through the wrongful and negligent actions of others. Whilst I would not favour any narrow construction of the legislation, it should not be overlooked that once the plaintiff is held to be within s.5(1A), as thus interpreted, no question of prejudice to a defendant is relevant, although that would be a relevant issue in considering the extension of time within which the action might be brought under s.23A. The judicial task under that section, of weighing up the justice of the case and balancing the respective rights of the fairness to the plaintiff and defendant, has no role to play in the statutory construction of s.5(1A). It is a commonplace that time might diminish the significance of known facts or circumstances and, moreover, much of the evidence may no longer be available.”

A similar process of reasoning has led me to the view that there is no warrant for reading into sub-paragraph (b) of s.5(1A) such qualifying criteria as “wrongful” or “negligent”. Just as in the general run of personal injury claims founded on tort, which are covered by s.5(1)(a) of the Act, sub-s. (1A) intends, in my view, that time will commence to run against the injured persons to whom it applies when such persons know that they have suffered the relevant injury and know of facts and circumstances which put them on notice that such injuries have been caused by the act or omission of some other person. To require the injured person to “know” that the act or omission was “wrongful” or “negligent” is to invest such person with knowledge of a legal consequence which, in my view, is not something which the sub-section contemplates.

Although the appellant had argued before the trial judge that her injuries did not consist of a “disease or disorder contracted” within the meaning of sub-s. (1A) of s.5, and notwithstanding that his Honour had reluctantly found that they did because he felt that he was “constrained” to do so by the authorities to which I have earlier referred, no argument was advanced on the appellant’s behalf in this Court that his Honour’s “finding” in this respect was erroneous. In a sense, the failure to address this question has made the Court’s task a more difficult one because s.5(1A) needs to be construed as a whole, and in context, and a resolution of what is meant by “disease or disorder” will, or may, bear upon the extent of the knowledge which sub-paragraph (b) requires. Nevertheless, this Court has not been asked to decide the contentious question whether, in enacting s.5(1A), the legislature had intended to confine the claims to which it applies to those which claim damages for insidious diseases or disorders, the symptoms of which may take years to emerge (such as asbestosis, mesothelioma and silicosis), or whether it was intended to apply to any form of injury which could properly fit the description of a disease or disorder, even though that injury had arisen through the application of external trauma and was apparent at or shortly after the infliction of such trauma. The earlier authorities, to which I have referred, have favoured the latter interpretation; but more recently other judges, including the experienced trial judge in this case, have expressed doubt about the width of interpretation which has been given to the meaning of “disease or disorder contracted” whilst being bound by authority to apply it. In Hickey’s case (supra), Hedigan, J., after referring to statements of the Attorney-General in the second reading speech introducing the 1983 amendments, said (at p.21):

“In the absence of these decisions [that is, the authorities to which I have earlier referred] I would find it difficult to resist the conclusion, based on the speech of the Attorney-General …, that the intention of the Parliament was to deal with workplace insidious diseases cases by putting them within s.5(1A), relieving them from the necessity to obtain an extension of time so long as a person acted within six years of discovering relevant matters. It arguably isolated them from the exercise of judicial discretion; the Act left conventional cases in which personal injuries were sustained by some conduct immediately occasioning injury with consequences visible within a short period, to be dealt with, if not sued upon within 6 years, within s.23A and in accordance with the criteria and discretions created by that section.”

In the absence of argument touching the matter, I do not think that this appeal is a suitable vehicle for expressing any concluded view on the proper interpretation of the words “disease or disorder contracted” in s.5(1A). Nevertheless, for my own part I would not wish it to be assumed that it is my view that the injuries of which the appellant complains consist of “a disease or disorder contracted” within the meaning of the sub-section. The mere fact that the legislation has used the word “contracted” in association with the “disease or disorder” of which it speaks suggests to me that the legislature has intended to set those diseases or disorders apart from physical injuries suffered as a consequence of traumatic insult, notwithstanding that the injury is the result of the infliction of repeated trauma[5]. Although the appellant’s tenosynovitis was medically labelled “De Quervain’s disease”, the evidence made it quite clear that her condition was the result of inflammation of the tendon sheath on the thumb side of the wrist brought about by repeated traumatic work related insults. As at present advised, I think there is much force in the views expressed by Chernov, J.A. in this appeal and by Hedigan, J. in Hickey’s case (supra) as to the meaning of the words “disease or disorder contracted” in s.5(1A), particularly having regard to the context in which the sub-section appears in the “package of reforms” made to the Act in 1983. It seems clear enough that the legislature was intending to carve out a special place in the “limitation field” for claims made in respect of “injuries consisting of a disease or disorder” and intended that such claims could be brought without regard to any prejudice which might be suffered by the defendant. Such consequences might themselves support the view that the sub-section is intended to be narrowly, rather than liberally, construed.
[5]cf Kennedy Cleaning Services Pty. Ltd. v. Petkoska [2000] 74 A.L.J.R. 1298 at 1315 per Callinan, J.

In the event that the appeal was allowed, both parties asked the Court to assess the appropriate damages to be awarded to the appellant, rather than remitting the matter to the County Court for such assessment. It was submitted that we could do so because, the judge having concluded in favour of the respondents that the appellant had not lost her cause of action against her former employer and had thus suffered no relevant loss, the parties had requested him to “proceed to a provisional assessment of damages”; a request with which his Honour complied. To assist him in his task, the parties made written submissions to his Honour, of which we have only those made by the appellant. In the result his Honour, in accordance with somewhat attenuated reasons, concluded:

“Had I found that the plaintiff had lost her chance of receiving an award of damages against Costas [her former employer] I would have assessed her damages at $161,000.”

This “provisional assessment” was strongly challenged by the respondent on a number of bases which were set out in a Notice of Contention which the respondent filed in this Court. Inter alia, that Notice contended that:
(a)his Honour had failed to make any allowance or discount in his assessment for the failure by the appellant to mitigate her loss by making application for extension of time pursuant to s.23A of the Act;
(b)his Honour’s assessment was against the evidence as to:
(i)the date upon which damages should be assessed;
(ii)the amount which would reasonably be assessed;
(iii)the probabilities of success of the notional proceedings;
(iv)the discounts which should be made for likely future receipts of weekly payments under the Accident Compensation Act 1985 and the value of rights retained under the Workers Compensation Act 1958.

At first blush, the Court was of the view that it was not in a position to determine, on the material available to it, the issues between the parties which would need to be resolved to enable it to make an appropriate assessment of damages. Indeed, in a case such as this, where the claim is for damages against solicitors for negligence in permitting a cause of action to become statute barred, it would generally be difficult for an appellate court to assess damages without having before it clear and unchallenged findings of fact made by the trial judge. Mindful, however, of the plight of the appellant and of the extent and cost of litigation to which she has already been subjected, the Court entertained submissions from the parties directed to the question whether it could properly assess damages for itself or whether the matter should be remitted for those damages to be assessed. Having heard those submissions we came to the view that we could not appropriately assess the damages ourselves and we advised the parties accordingly. We so concluded because there are several issues in contention between the parties which are the subject of disputed fact or opinion and the resolution of which, in the absence of any, or any adequate, reasons given by the trial judge, would leave this Court in a position of having to make an assessment based upon an unsound foundation. For example, we were informed that the respondents presented substantial argument to his Honour in support of their contention that due allowance should have been made for prospects which the appellant had, but denied to herself, of making an application to extend the time limits under s.23A. No reference was made to this argument in his Honour’s reasons. There were other unresolved issues going to such matters as the prospects of success of a claim brought by the appellant against her former employer; as to whether any and what allowance should be made in the award of general damages for sums paid or payable to the appellant by way of lump sum under s.98 of the Accident Compensation Act; as to discounts (if any) which should be made for weekly payments likely to be made to the appellant under the Accident Compensation Act when assessing loss of future earning capacity; and as to the value of rights retained by the appellant under the Workers Compensation Act 1958 in respect of the injury suffered in 1984. Each of these issues was the subject of disputed evidence and his Honour’s reasons for resolving them disclosed little by way of substance for his conclusions. In this respect I attribute no criticism to his Honour who had embarked upon a hypothetical exercise at the behest of the parties. However, in the light of the matters to which I have referred, it became apparent that this Court would be doing justice to neither party, and would in all probability be compounding the problems, if it were now to essay an assessment of damages upon the material which exists only in transcript form, and where the Court does not have the benefit of full reasons of the trial judge for arriving at the assessment which he made.

Accordingly, I would allow the appeal, set aside the judgment below and, in lieu thereof, order that there be judgment for the plaintiff for damages to be assessed. I would further order that the defendant pay the costs of the proceedings so far incurred and direct that the matter be remitted to the County Court for assessment of

damages, the costs thereof being in the discretion of the judge making such assessment. The appellant should have her costs of the appeal.

TADGELL, J.A.:

I agree that this appeal should succeed. I do so on the ground that there is no warrant for interpreting paragraph (b) of s. 5(1A) of the Limitation of Actions Act 1958 as by implication qualifying the “act or omission” to which it refers. Although the judge was constrained by authority to interpret the provision as though it contains qualifying words such as wrongful or negligent, I agree with the other members of the Court that the authorities which so decided were to that extent incorrect. There was ample evidence that the appellant knew, more than six years before suing the respondent, that the injury for which she could have sued her employer, Costa’s, had been caused by act or omission of that employer; and the judge should be taken to have so found. That was sufficient to have required a rejection by the judge of the respondent’s defence, founded on s. 5(1A), that the appellant’s claim against the employer was not statute-barred.

We were not invited to express an opinion on the question whether, for another reason, s. 5(1A) could not avail the appellant, namely that her claim did not consist of or include a claim for damages “in respect of personal injuries consisting of a disease or disorder contracted by” her. I should be unwilling to embark on such an exercise in the absence of necessity; and pace Chernov, J.A. (with whose reasons in general I otherwise respectfully agree) I should prefer not to express any view upon it in the course of resolving the question that we were asked to decide. Moreover, I should not wish to offer in this case a definition – even provisionally – of “disease or disorder” as found in s. 5(1A). A dichotomy between personal injuries suffered as a result of trauma and those “suffered” (see s. 5(1A)(a)) as a result of a “disease or disorder contracted” may not be always obvious. Indeed, the two categories might not be mutually exclusive. In any event I do not at present see why the personal injuries referred to in s. 5(1A) should be confined to workplace injuries so as to

exclude injuries attributable, for example, to medical negligence[6]; and if they are not so confined, the boundaries might have to be determined on a case by case basis.

[6]I have in mind, for instance, slow-developing radiologically-induced disease; and the discovery, years after a surgical operation, of an unintentionally embodied instrument.

This Court should order that the judgment below be set aside, that in lieu there be judgment for the plaintiff for damages to be assessed, that the defendant pay the plaintiff’s costs of the proceeding so far incurred and that the proceeding be remitted to the County Court for such assessment, the costs thereof being in the discretion of the judge making it. The appellant should have her costs of the appeal.

CHERNOV, J.A.:

This appeal is concerned essentially with the proper interpretation of s.5(1A) of the Limitation of Actions Act 1958 (“the Act”) which is in the following terms:

“(1A)An action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows –
(a)that he has suffered those personal injuries; and
(b)that those personal injuries were caused by the act or omission of some person.”

The principal issue to be determined is whether for the purposes of para.(b) of s.5(1A) a plaintiff must know simply that the relevant injury was caused by an act or omission of the defendant or whether he or she must also know that the causative act or omission was wrongful or negligent. Before analysing this issue, I shall set out the circumstances that gave rise to it.

In May 1984 the appellant, who is now aged 49, took up the position of bookkeeper/accountant at Costa’s Builders Mart Pty. Ltd. (“Costa’s”) which is a

building hardware business. She was the only person who performed that type of work at the company, all of which had to be processed manually because at that time Costa’s records were not computerised. The only instrument available to assist her was a calculator. Her official hours of work were between 9 a.m. and 3 p.m., but she often worked additional hours and took work home. Her tasks included:
-          calculating amounts due to the company from its invoices
-          entering the amounts and related information on a ledger card
-          calculating wages
-          writing all cheques
-          counting the day’s takings
-          entering all such financial information in the company’s books of account.

Being right-handed, she constantly used her right hand, including the wrist, in carrying out her duties at Costa’s. Moreover, she was required to perform her work in a somewhat makeshift and cramped environment. Instead of being seated at a desk on an adjustable chair, the appellant had to do her work on a bench that was nailed to the wall, while seated on a non-adjustable chair. Because of her short stature and the height of the bench, she was forced to sit at the edge of her chair and to lean forward so that her feet were not able to touch the ground. The appellant’s workload was considerable and in order to process it, she usually had to work at the office without any breaks, eating her lunch with her left hand whilst continuing to work with the right hand.

After performing that work for several months the appellant experienced at night pain in her right wrist which she thought was the result of a strained wrist. She nevertheless continued to work. During her visit to the family doctor, Dr. Korman, in November 1984, in relation to a matter unconnected with her work, she experienced pain in her right wrist whilst undressing. As a result, Dr. Korman examined her right wrist and arm. In response to his query, the appellant told him of the work that she performed at Costa’s and her working conditions. After the examination Dr. Korman told her that she had tenosynovitis and immobilised the wrist by encasing it in plaster. As a consequence, she was absent from work for a short period and upon her return, a claim for compensation was submitted in relation to her injury under the Workers’ Compensation Act 1958.

In December 1984 the appellant’s right wrist was examined by a surgeon, Mr. Pianta, who injected cortisone into it and advised her to rest from work. Consequently, she was absent from Costa’s for approximately three weeks. Upon her return, she continued to perform her previous duties although she had to work more quickly because more work was coming through to her as a result of an increase in the company’s business. She spoke to management about the difficulty of keeping up with her workload without assistance and eventually, in about April or May 1985, a young female employee was assigned to help her although the appellant found that the time taken by her to train the new employee and the slow pace at which she worked, meant that she gained no relief from the pressure or the extent of her workload. During this period the pain in her right wrist continued to increase and because of that she found it more difficult to carry out her work. In light of those circumstances she ceased work at Costa’s in about July 1985 and a little later, took up a job with Rainbow Town Pty. Ltd. (“Rainbow”), which conducted a supermarket, in the belief that her work there would not aggravate her right wrist and that the problem would settle down. As events turned out, however, she was required to operate a cash register in her new job which aggravated her wrist problem. In approximately October 1985 the appellant left work and was diagnosed by Dr. Korman with a recurrence of De Quervains tenosynovitis in her right wrist. Later that month, she again saw Mr. Pianta. She has not worked since.

On 25 October 1985 the plaintiff consulted the respondent, which was her family solicitor, about her injury. She described to one of the principals of the firm her injury and the work that she was required to perform at Costa’s including the work environment and enquired about her right to compensation in respect of her injury. She was advised that she was entitled to WorkCover payments, but was not told that she had any right to claim common law damages from Costa’s. A claim for compensation under the Workers’ Compensation Act was in fact submitted on her behalf by the respondent, naming Rainbow as the employer and indicating that a previous injury had been suffered in the course of her employment by Costa’s. As a result of the claim, the appellant received weekly compensation payments which, at the outset, were broadly equivalent to her net wage.

In about mid-1986, when visiting a friend at Costa’s, the appellant noticed that the area in which she had worked had been converted into a large office and that the work that she had performed was now carried out by a number of people who worked at standard desks with computers and who sat on swivel and adjustable chairs. Between the end of 1985 and early 1993 the appellant had a number of operations as part of the treatment for her wrist injury, but none of the treatment was successful and she continued to suffer pain in her right hand and wrist. She also developed severe depression and associated psychological problems in respect of which she also received regular treatment, but no cure.

While the appellant was experiencing these problems the Accident Compensation Commission (“the Commission”) sought in May 1991 to reduce her weekly compensation and it was only after an appeal process was pursued on her behalf that the Commission determined not to reduce her weekly payments. Eventually, however, in May 1992 the Commission succeeded in lowering her payments. It seems that the appellant’s dispute with the Commission aggravated her psychological problems.

The appellant became dissatisfied with the inability of the respondent to resolve the constant difficulties that she was experiencing with the Commission and, in September 1992, she consulted another firm of solicitors. She concluded that they, too, were unsatisfactory and in about March 1993 she consulted her present solicitors who advised her that she had a negligence claim for damages against Costa’s in respect of her wrist injury. That was the first time that the appellant had received such advice. She was further advised that, although the claim was statute-barred, she had a good case against the respondent for its failure to advise her that she had a right to seek damages from her former employer. As a result, her solicitors filed a writ on her behalf in the County Court on 16 October 1995 in which she claimed that the respondent breached its retainer and was negligent by failing to advise her that she had a right to claim common law damages from Costa’s in respect of her wrist injury with the result that she had lost the opportunity to exercise that right because the action had become statute-barred in August 1991.

The trial commenced on 18 September 1998. Near the end of the trial, on 29 September 1998, the learned trial judge gave leave to the respondent to amend its defence to plead that the appellant had not lost the opportunity to recover damages from Costa’s. In its amended pleading the respondent alleged that the appellant’s cause of action against Costa’s was not statute-barred having regard to s.5(1A) of the Act. More particularly, it was said, in effect, that the injury in question was a “disease or disorder” within the meaning of that provision and that, since the appellant did not know prior to March 1993 that it was caused by an act or omission of Costa’s, or alternatively, if she was aware of that she did not know that Costa’s relevant conduct was negligent, her cause of action against Costa’s did not begin to accrue until that date. In her response, the appellant contended, in effect, that her wrist injury did not fall within s.5(1A) but if it did, she knew more than six years prior to March 1993 that it was caused by her working conditions at Costa’s and, therefore, her cause of action against it was statute-barred as at that date.

The learned trial judge found that the appellant suffered the wrist injury in the course of her employment with Costa’s between May 1984 and July 1985 by reason of Costa’s negligence and breach of statutory duty and that there was no contributory negligence on her part. His Honour accepted the evidence of an ergonomist, Ms Greig, that the appellant’s duties at Costa’s involved intense and continuous use of her right hand with little or no opportunity for breaks. Injury arose from the gripping of a pen for long periods, keying tasks using a calculator and poor work posture due to an incorrect bench height. Ms Greig opined that a number of steps would have assisted in preventing the injury to the appellant including providing appropriate furniture, appropriate rest breaks assigning a duly qualified member of staff to assist her in her work and providing her with occupational and health training.

His Honour also found that the respondent was negligent and breached its retainer by its failure to advise the appellant of her right to claim damages from Costa’s in respect of her wrist injury and, but for that fact, she would have instituted a proceeding against Costa’s in relation to the injury. His Honour then turned to consider whether the appellant was statute-barred from bringing a proceeding for damages against Costa’s. His Honour recognised that, absent s.5(1A), the appellant’s cause of action would have been barred by the operation of s.5(1)(a) of the Act at the latest by the end of 1991, well before she first consulted her present solicitors. But he concluded that, having regard to the authorities which bound him and to which I will refer shortly, he was constrained to find that the relevant period of limitation fell to be determined under s.5(1A) and not under s.5(1)(a). More particularly, his Honour said that he was constrained by those authorities to find that the appellant’s wrist injury was a “disease or disorder” within the meaning of s.5(1A) and that, until she knew that it was caused by an act or omission of Costa’s that was wrongful or negligent, the limitation period did not run against her. Since she did not know this until her present solicitors advised her to that effect, the limitation period did not commence until then.

Notwithstanding these conclusions, at the request of the parties, the learned trial judge assessed the value of the appellant’s loss of opportunity to bring a proceeding for common law damages against Costa’s in respect of her wrist injury assuming that she was statute-barred and that the trial would have been held between about March and June 1993. His Honour considered that the amount of damages that the appellant would have recovered against Costa’s was $230,000 [64]. Since, in his Honour’s view, the appellant had only a 70 per cent probability of success he considered that the value of the appellant’s loss of chance of suing Costa’s for damages was $161,000.

The cases which bound his Honour were Perry v. Royal Women’s Hospital[7], Donnelly v. State of Victoria[8] (in which O’Bryan, J. followed and applied Perry) and Herschberg v. Mula[9] (in which Southwell and O’Bryan, JJ. effectively approved Perry). The learned trial judge noted that his views concerning the operation of s.5(1A) absent authority, were not dissimilar to those of Hedigan, J. in Hickey v. Womens & Childrens Health Care Network[10] where his Honour said[11] that had he not felt constrained to follow the above cases, he would have found it difficult to resist the conclusion that s.5(1A) was confined to personal injuries that comprised workplace insidious diseases and that there was no warrant in reading “wrongful or negligent” into para.(b) in respect of the act or omission of the proposed defendant. Nevertheless, as I have said, applying the principles stated in those cases, the learned trial judge concluded that the appellant’s injury, being De Quervains tenosynovitis, was a “disease or disorder” within the meaning of s.5(1A) and that her cause of action against her former employer was not deemed to have accrued for the purpose of that sub-section until March 1993, when she first became aware that her injury was caused by Costa’s negligence. In this appeal, his Honour’s finding that the appellant’s wrist injury was a “disease or disorder” within s.5(1A) was not challenged; the principal attack was on his Honour’s finding that the relevant limitation period did not commence until she knew that Costa’s causative act or omission was wrongful or negligent.
[7]Beach, J., unreported, 14 May 1991.
[8]Unreported, 30 June 1994.
[9]1993 Aust. Tort Reports 81-256.
[10]Unreported 11 June 1998.
[11]At 21.

Mr. Stanley, who appeared with Mr. Ingram for the appellant, submitted that a cause of action accrues for the purposes of s.5(1A) when the plaintiff knows that the injury is causally related to the act or omission of the prospective defendant. He contended that there is no warrant for reading into s.5(1A)(b) the words “wrongful or negligent” as his Honour did. He submitted that the authorities on which his Honour relied on this issue were wrongly decided. It was further argued for the appellant that, on the evidence, she first knew more than six years before March 1993 that her wrist injury was caused by the act or omission of Costa’s or alternatively, she was aware of facts from which an inference to that effect could objectively be drawn. It was said that it was at that point that the limitation period commenced for the purposes of s.5(1A) and, in the circumstances, her cause of action as against Costa’s was barred by March 1993. On the other hand, Mr. Gorton, who appeared with Mr. Ross for the respondent, contended that his Honour was correct in holding that the limitation period did not start to run against the appellant until about March 1993 because, until then, she did not know that Costa’s act or omission caused her wrist injury, or alternatively, if she did know that before she saw her present solicitors, she did not know that the act or omission was “wrongful” or “negligent”. Mr. Gorton argued that the authorities which bound his Honour were correctly decided.

Before dealing with the competing considerations, it is helpful to analyse briefly the development of the relevant provisions of the Act. In general terms, in prescribing periods of time after which respective categories of proceedings may not be brought, the Act seeks to strike a balance between the requirement of the prospective plaintiff to have a reasonable period of time within which to commence proceedings on the one hand and the unfairness to the prospective defendant if such a period were to be unduly long on the other. So far as is relevant, when the consolidating Act was passed, the limitation period in respect of actions for damages for personal injuries based on tort or breach of duty was prescribed by the then s.5(6) to be three years from the date on which the cause of action accrued. The inflexibility of this limitation period, however, resulted in injustice being visited upon those plaintiffs who had not issued proceedings within that time in respect of personal injuries suffered by them because, through no fault of their own, they were unaware until after this period of facts and circumstances which gave rise to the right to bring such an action.

In order to overcome such unfairness but being mindful of the right of the defendant to be sued within a reasonable time, the Parliament inserted s.23A into the Act in 1972 (by Act 8300 of 1972). The new section gave the court the discretion to extend the three year limitation period in respect of personal injury claims providing the circumstances set out in s.23A were made out by the applicant.

As events turned out, the new section was difficult to apply; there was considerable litigation as to its meaning and the ambit of its operation and the benefit which was intended to be conferred by it on prospective plaintiffs did not materialise. The operation of s.23A and other provisions dealing with the limitations of actions in personal injury claims was considered by a sub-committee of the Chief Justice’s Law Reform Committee (“the Committee”) chaired by The Honourable Mr. Justice Marks (“the Sub-Committee”). In its report of 6 May 1981 to the Committee (which adopted that report and forwarded its recommendation to the government) the Sub-Committee was critical of the terms and operation of s.23A and recommended that it be replaced by a differently worded section. It also recommended that the three year limitation period in respect of personal injuries was unduly short and should be increased to six years. Further, it drew attention to the unfairness of continuing to have effectively the same limitation period for the “ordinary” personal injury claims and for claims in respect of personal injuries which consisted of diseases and disorders such as asbestosis which often did not manifest themselves as injuries for a considerable period of time after they were first contracted. It recommended that the limitation period in respect of such injuries not commence until the date when the claimant knows “he has contracted the disease and that such personal injuries were caused by an act or omission of some person”. In that context, the Sub-Committee commented that:

“Insidious diseases such as asbestosis and pneumoconiosis have given rise to extension of time applications because the limitation period commonly expires before the victim knows that he has the disease and that it was caused by some act or omission of his employer.”

The Sub-Committee then referred to a number of decided cases which dealt with such applications.

As a result, the Parliament passed in 1983 (Act 9884 of that year) a number of further amendments to the principal Act. I will deal later more specifically with the relevant changes, but for the present, it is sufficient to mention by way of summary the following:

(a)Section 5(6) was repealed (getting rid of the three year limitation period for personal injury claims). The newly worded s.5(1)(a) prescribed a six year limitation period in respect of personal injury claims, but was made subject to the operation of the new s.5(1A).
(b)Section 5(1A) was a new sub-section which specifically dealt with the limitation period applicable to claims for damages in respect of personal injuries consisting of “a disease or disorder” contracted by any person. Its terms have been set out previously, although it should be noted that when the provision was introduced in 1983 it did not contain the words “and the cause of action shall be taken to have accrued on”. These words were inserted by the 1989 amendments.
(c)The 1983 Act also introduced a new s.23A. It empowered the court to extend at any time the limitation period applicable to claims for damages in respect of personal injuries for such time as it determined provided it was satisfied that it was “just and reasonable so to do”. In exercising that power the court was required to have regard, inter alia, to “.. the extent to which ... there is or is likely to be prejudice to the defendant [if the limitation period is extended]”. Thus, in contrast to its 1972 predecessor, the new s.23A gave the court a broad discretion to extend the limitation period where it considered it was just and reasonable to do so. It also afforded the prospective defendant some protection against injustice that may arise by the proceeding being brought against it during the extended period by the requirement that in considering the justice and reasonableness of the situation, the court was to have regard to the extent to which the extension is likely to prejudice the defendant.

Corresponding amendments were made to the Wrongs Act 1958.

I now turn to look briefly at the authorities which bound his Honour and in which the meaning and operation of s.5(1A) were considered. In that context, I will also refer to the decision of Hedigan, J. in Hickey. In Perry the plaintiff, who was born three months premature in 1967 and was placed in a humidicrib, developed retrolental fibroplasia which led to his blindness in 1974. For the purpose of investigating and later preparing the plaintiff’s case against the hospital, documents concerning its treatment of him were sought from it, but the hospital refused to make them available until about October 1983 (and only then pursuant to the Freedom of Information Act 1982) about which Beach, J. was, rightly I think, critical. It was only after the documents were made available that the plaintiff’s mother discovered that the plaintiff’s condition might have been caused by excessive administration of oxygen to him by hospital employees when he was in the humidicrib. The plaintiff brought a proceeding against the hospital in respect of his injury and, given the hospital’s claim that the action was statute-barred and the plaintiff’s reliance on s.5(1A), the questions that his Honour had to resolve (and which are relevant for present purposes) were:

(a)was the plaintiff’s injury a “disease or disorder” within the meaning of s.5(1A);
(b)did the limitation period commence under that provision before the plaintiff knew that his injury was caused by the hospital’s act or omission which was wrongful or negligent?

After a close analysis of the legislation and the circumstances of the case, his Honour concluded that the limitation period did not commence for the purposes of s.5(1A) until the plaintiff knew that his injury was caused by an act or omission of the hospital that was wrongful or negligent. In coming to that conclusion his Honour had regard principally to the following matters:

(a)The fact that the relevant changes to the legislation since 1955 had produced “a significant relaxation in the law relating to the rights of persons to bring actions for damages for personal injuries and the time within which such actions may be brought”.
(b)The court was “justified in taking the view that the legislature intends that a liberal interpretation be given to the legislation, one which assists persons who have suffered injury through the wrongful and negligent actions of others rather than one which inhibits and restricts them”.
(c)In order to give any sensible meaning to sub-s.5(1A) the act or omission referred to in it “must be a wrongful or negligent act or omission ..”.
(d)The inclusion of the word “omission” in the sub-section connotes neglect or non-performance of duty.

His Honour also rejected the hospital’s argument that s.5(1A) operated only in relation to claims arising from industrial insidious diseases and not in respect of cases of traumatic injuries such as the one suffered by the plaintiff. He considered that the retrolental fibroplasia fell within the definition of “disease” in the relevant dictionaries and thus, within the words “disease and disorder” in s.5(1A). In light of those findings, his Honour struck out the hospital’s defence based on the Act.

As I mentioned earlier, in Donnelly, O’Bryan, J. agreed with the reasoning of Beach, J. and applied it to the case before him.

In Herschberg the appellant was a medical practitioner against whom the respondent brought a proceeding for damages based on an allegedly negligent insertion by the appellant of an intra-urine device into the respondent’s body in 1970. It was alleged that this resulted in the respondent suffering a chronic pelvic infection. The parties were in dispute as to whether the respondent’s cause of action was statute-barred. The respondent relied on s.5(1A). The appellant sought to strike out the statement of claim summarily on the basis that the provision did not apply because the respondent’s injury was not “disease or disorder” for the purposes of that provision. He failed in that application because the trial judge held that it was at least strongly arguable that the pelvic infection was a “disease or disorder” within the meaning of s.5(1A). His appeal against that decision was unsuccessful. Southwell and O’Bryan, JJ. rejected the argument that the “personal injuries consisting of disease and disorder” in s.5(1A) were limited to diseases such as asbestosis, which were contracted long ago but where the consequences of them did not manifest themselves for a considerable time. Their Honours considered that the ordinary meaning of “disease or disorder” was sufficiently wide to include a chronic pelvic infection and since Parliament’s omission to define the words was an indication that it did not intend to confine their ordinary meaning, the injury in question fell within s.5(1A). Their Honours said that they were not assisted in resolving the matter before them by the Parliamentary debates. Furthermore, they were not persuaded that the rejection by Beach, J. in Perry of the argument that s.5(1A) only applies to “insidious industrial diseases not to traumatic injury” was wrong.

In Hickey, the plaintiff sustained brain damage as a result of a surgical procedure which was undertaken in December 1974 to repair his condition which was diagnosed as tetralogy of fallot (hole in the heart). The issue before Hedigan, J. was whether the injuries sustained by the plaintiff as a result of the allegedly negligent surgical procedure fell within “disease or disorder” in s.5(1A). After a detailed analysis of the relevant legislative history, the authorities to which I have referred and the applicable terms of the Act, his Honour concluded that, absent those decisions, it would have been difficult to resist the conclusion, based on the Attorney-General’s Second Reading Speech in relation to the 1983 amending legislation, that the intention of the Parliament was to deal with workplace insidious disease cases by putting them within s.5(1A) thereby relieving the injured person from the necessity to obtain an extension of time from the court so long as he or she acted within six years of discovering the relevant matters. In his Honour’s view the injuries in Perry and Herschberg were not workplace insidious diseases or disorders. Nevertheless, his Honour ultimately took the view that he was bound to adopt the approach of Beach, J. in Perry and the subsequent cases and, therefore, rejected [24] (in my view with some reluctance) submissions put to him by Mr. Forrest for the defendant that the 1983 reforms relating to the limitation of actions for personal injury claims differentiated between industrial disease-type claims and frank personal injury cases with only the former falling within s.5(1A). It was also argued by Mr. Forrest that if the meaning of s.5(1A) in terms of the language of disease or disorder was as wide as the earlier cases had decided, much of s.23A was unnecessary and irrelevant.

Since the question whether the applicant’s wrist injury was a “disease or disorder” within the meaning of s.5(1A) was not argued before us, it is not appropriate to express a concluded view as to the meaning and operation of those words. Nevertheless, given the terms of ss.5(1)(a), 5(1A) and 23A and their legislative history, as presently advised, I find it difficult to see how the applicant’s injury could be said to be “a disease or disorder [that was] contracted” by her within the meaning of s.5(1A).

Essentially, the conclusion in the earlier cases that traumatic personal injury claims fell within s.5(1A) was reached on the bases that the provision should be construed liberally and not technically, that the plain meaning of "disease or disorder” encompasses at least some traumatic personal injuries, and that Parliament’s omission to narrow such meaning of those words by way of definition made it appropriate to regard them as having such an operation. It seems to me, however, that there is much to be said for the view expressed by Hedigan, J. in Hickey[12], that there is no justification in construing the provision liberally “simply because it is legislation to assist persons who have suffered injury through a wrongful and negligent action of others”. Whilst his Honour did not favour a narrow construction of the sub-section, he recognised that, once the plaintiff’s injuries fell within its ambit, the plaintiff ordinarily gained the considerable benefit of not having to proceed under s.23A of the Act and seek to persuade the court that it was just and reasonable that the limitation period prescribed by s.5(1)(a) should be extended and in that context, deal with the question of whether the extension sought is likely to prejudice the defendant. In my view, however, even if s.5(1A) were to be construed liberally, it would nevertheless be necessary to construe its relevant words in their context – IW v. City of Perth[13] - and that involves the consideration of its role in Part I of the Act and of its legislative history. Moreover, the mere fact that the legislation did not, in terms, define “disease or disorder” does not necessarily mean that those words can be properly read as widely as the earlier cases have done. Again, it is a matter of construing the words in their legislative context.
[12]At 23.
[13](1997) 191 C.L.R. 1 at 39 per Gummow, J.

There are, in my opinion, sound reasons for favouring the view that s.5(1A) does not operate in relation to traumatic personal injury claims and that the limitation period in respect of them is prescribed by s.5(1)(a). First, although s.5(1)(a) and s.5(1A) are the only provisions in the Act that prescribe the limitation period in respect of personal injury claims, their wording suggests that they are mutually exclusive in that each relates to different categories of personal injury claims so that those falling within s.5(1A), for example, do not also fall within s.5(1)(a) and vice versa. This follows from the definition in s.5(1A) of the personal injury claims to which the provision relates, namely, “personal injuries consisting of disease or disorder” and from the effective exclusion of those injuries from the operation of s.5(1)(a) by the words “(subject to sub-section (1A))” as they appear in that sub-section. Secondly, the terms and the operation of s.5(1A) suggests that it relates only to personal injuries which ordinarily take a considerable period of time to manifest themselves to the injured person, hence the provision that the cause of action shall not be taken to have accrued unless the plaintiff knows “that he has suffered those personal injuries”. No such postponement of the limitation period is necessary as a matter of fairness in respect of traumatic personal injuries because in nearly all such cases their existence is recognised at or shortly after the happening of the relevant event. It is true that often the full extent of a traumatic injury may not be ascertained until after the lapse of a considerable period of time, but the fact of such an injury would be known almost immediately or shortly after the event in question. Even where, in the relatively unusual case, the fact or the existence of the injury caused by a trauma is not known until after the expiration of six years after the event, the justice of the situation is met by the opportunity to have the limitation period extended pursuant to s.23A. Next, the use of the word “contracted” in relation to personal injuries consisting of disease or disorder is consistent with such injuries not being the result of a trauma. Ordinarily, traumatic injuries are said to be “caused” or “sustained” rather than “contracted”. Further, if traumatic injuries fell within s.5(1A) much of s.23A would be unnecessary and irrelevant.

If s.5(1A) is concerned only with personal injury claims arising out of an insidious disease such as asbestosis, a traumatic personal injury which properly falls within s.5(1)(a) does not become a “disease or disorder” for the purposes of s.5(1A) merely because the plaintiff has been unaware of its existence or of the relevant causal nexus until after the expiration of six years following the trauma. If it were otherwise, as I have said, s.23A would have very little operation. Such a plaintiff would effectively obtain an extension of the limitation period without having to persuade the court that an extension would be just and reasonable and without having to address the question whether the extension is likely to prejudice the defendant. In my view, that is unlikely to have been contemplated by the legislature.

The conclusion that, on its proper construction, s.5(1A) is concerned only with actions arising out of “insidious” personal injuries (i.e., those which have not been caused by trauma), gains support from the extrinsic material relating to the 1983 amending legislation. I have already mentioned the report of the Sub-Committee which was adopted by the Committee and on which the 1983 legislation amendments to which I have referred, were based. In addition, there is the Second Reading Speech made on 14 December 1982 by the Attorney-General in relation to the then proposed amendments. In that speech the Attorney acknowledged[14] that the amendments were put forward principally to implement the recommendations of the Committee which, in broad terms, were:

“that disease or disorder claims, such as asbestosis or pneumoconiosis, be treated differently from all other personal injury claims. The committee recommended a standard limitation period for all personal injury claims with a broad discretion in the courts to extend that period where it is just and reasonable to do so. The committee also recommended guidelines to assist a court in the exercise of its discretion.”

The Attorney went on to say[15]:
“In personal injury claims, other than disease or disorder cases, the injured person may bring his action for damages within six years after the date of the accrual of his cause of action. Normally that would be the date of the injury. In disease cases, such as asbestosis or pneumoconiosis, the injured person may bring his action for damages within six years from the date that he knows he has the disease or disorder and that someone is responsible – that is, when he knows he has a cause of action. That knowledge may not come to the injured person until many years after the disease or disorder starts to develop.”

[14]Hansard, Assembly, at [2765].

[15]Hansard, Assembly, at [2766].

I now turn to consider whether the words “wrongful or negligent” can be properly implied into para.(b) of s.5(1A) as was contended for by Mr. Gorton. It will be recalled that Beach, J. read those words into the sub-section principally because, as I have said, he was of the opinion that the provision should be construed liberally and because it was necessary to do so in order to give it sense and meaning. I have already dealt with whether the sub-section should be construed liberally. If it is the case that the provision cannot be given sense and meaning, or if the aim of the legislation would be defeated, unless the words in question were read into it, there would be much to be said for doing so. But unless some such basis can be put forward for implying those words into the sub-section, they cannot be properly read into it – Director-General of Education v. Suttling[16]. In my opinion, the sub-section does have sense and meaning consistently with the policy underlying it if the words of para.(b) are given their ordinary meaning and the words “wrongful and negligent” are not implied into it. I have come to this conclusion for the following reasons.
[16](1987) 162 C.L.R. 427 at 433 per Wilson and Dawson, JJ. (who were in the minority although this is not relevant for present purposes).

I have already mentioned that the underlying purpose of s.5(1)(a) and s.5(1A) is to strike a fair balance between the need of the prospective plaintiff to have an appropriate period of time within which to commence an action in respect of his or her personal injury before it becomes statute-barred on the one hand and the injustice that might be caused to the prospective defendant if this period is unduly prolonged on the other. In relation to personal injury claims that fall within s.5(1A) the provision seems to achieve this compromise by effectively postponing the commencement date of the limitation period but only until such time as the injured person knows of the matters in paras.(a) and (b) of the sub-section. If the words in para.(b) were given their ordinary meaning, the limitation period would commence once the injured person becomes aware that there is a causal nexus between the injury and a relevant act or omission of the prospective defendant. In my view, such a construction of s.5(1A) would not be unfair to the prospective plaintiff and would give the provision a sensible operation consistently with its underlying purpose. Once an injured person is aware of such facts and circumstances, it is reasonable to expect that he or she should, within the limitation period, take the necessary steps to ascertain if he or she has a good claim and, if considered appropriate, bring an action in respect of the injury. Fairness to such a plaintiff does not require the postponement of the limitation period until he or she also knows that the act or omission of the prospective defendant was wrongful or negligent. Hence, in my opinion, it is not necessary to imply into para.(b) of s.5(1A) the words “wrongful or negligent” in order to give the sub-section sense or meaning.

There are, moreover, other reasons why it is apparent that the legislature did not intend the words “wrongful or negligent” to form part of the sub-section. First, it chose not to incorporate them into the provision when it could have easily done so, and no such suggestion was made by the Sub-Committee. Secondly, the inclusion of those words would lead to unnecessary ambiguity. It is far from clear, for example, how it would be established that a plaintiff “knows” that the defendant’s act or omission was “wrongful or negligent”. It is to be noted that the legislature has used the word “knows” and not “believes”. Thus, the plaintiff’s mere belief on this question would be irrelevant. Thirdly, there will be situations where, however one defines “knows”, the plaintiff could not be taken to “know” that the defendant was negligent until a considerable time after he or she has learned that there is a causal nexus between the injury and the defendant’s act or omission. Any such extension of the commencement of the limitation period would produce an effective limitation period which will be significantly longer than is required to protect the plaintiff against an unreasonably premature barring of his or her cause of action. On the other hand, it is likely to cause injustice to the prospective defendant. Neither situation is, in my opinion, contemplated by the legislation.

For completeness, I refer to the view expressed by Beach, J. in Perry that, since “omission” connotes negligence or non-performance of duty, its presence in para(b) of s.5(1A) is a reason why the words “wrongful or negligent” should be implied into it. But, as I have said, the plain words of the provision show that it is concerned with the knowledge by the injured person of the causal nexus between the injury and the act or omission of the prospective defendant. The mere fact that, in certain circumstances, an omission, just like an act, may amount to negligence or to non-performance of duty, does not justify adding the proposed gloss to the provision.

Thus, in my opinion the words of para.(b) of s.5(1A) should be given their ordinary meaning so that the cause of action accrues for the purposes of the sub-section once the injured person knows that there is a causal nexus between the relevant injury and the act or omission of the prospective defendant.

It will be recalled that in this case, contrary to the typical situation, the appellant claims that she knew more than six years before March 1993 that there was a causal connection between her wrist injury and her working conditions at Costa’s. On the other hand, the respondent, also atypically, claims that there was no such knowledge on the part of the appellant prior to March 1993 and that his Honour so held. It is true that his Honour said that there was “little direct evidence as to whether the appellant knew prior to her retaining her present solicitors in March 1993 that the personal injuries she suffered were caused by the act or omission of her employer, Costa’s.” But his Honour made that observation immediately after he had concluded that he was bound by the authorities to imply “wrongful or negligent” into the subsection so that, until the plaintiff first knew that her wrist injury was causally linked to an act or omission of Costa’s which was wrongful or negligent, the period of limitation against her for the purpose of s.5(1A) did not commence. Thus, his Honour made the observation in the context of assessing whether the appellant knew that Costa’s relevant act or omission was wrongful or negligent. His conclusion after reviewing the evidence was, as I have said, that the appellant did not know prior to March 1993 that her injuries were caused by the wrongful or negligent act of her former employer. It was on that basis that his Honour concluded that the appellant had not lost her right to bring an action for common law damages against Costa’s. Given that his Honour construed para.(b) of s.5(1A) as he did, there would have been no point to his considering if and when the appellant first knew merely of the causal connection between the injury and the act or omission of Costa’s. Consequently, in my view, on a fair reading of his Honour’s judgment, there is no finding that the appellant did not know until March 1993 that there was a causal connection between her wrist injury and her working condition at Costa’s.

Mr. Gorton submitted that, in any event, the evidence showed that the appellant was not aware of such a causal connection until March 1993. He contended, for example, that, although Dr. Korman told the appellant that she had tenosynovitis in her right wrist, he did not, in terms, tell her that the condition was caused by her working conditions. But even assuming that to have been the position, it does not follow that the appellant did not discern at or shortly after seeing Dr. Korman that there was such a connection between her injury and her work. Moreover, Dr. Korman told the appellant that she had tenosynovitis after he not only examined her, but after he ascertained from her what work she performed. His pronouncement after being told about her work would have suggested to her that, in the doctor’s view, her injury was causally related to her work. Mr. Gorton also argued that the appellant may have become aware that the symptoms of her injury increased by reason of her work, but that that should not be equated with knowledge of acts or omissions on the part of Costa’s as a cause of the injury. Symptoms might provoke the sufferer to make inquiries to acquire knowledge, said Mr. Gorton, but there is no evidence of such inquiry or acquisition of relevant knowledge in this case. In my view, however, once the appellant appreciated that her injury deteriorated because of her work, she became aware for the purposes of s.5(1A) of the causal connection between her injury and Costa’s act or omission so as to be on notice that she should seek advice about her right to claim damages in respect of her injury from her former employer. In my opinion, the uncontradicted evidence of the appellant makes it clear that she well knew at the latest in the latter part of 1985 that her injury was causally related to her working conditions – that is, the “act or omission” of Costa’s. That the appellant appreciated this situation during that period is amply demonstrated by her attendance on the respondent in October 1985 for the very purpose of seeking advice as to her legal rights in respect of her injury.

But for the breach of the respondent’s duty, she would have been advised that she did have a cause of action against Costa’s for damages in respect of her injury and had that advice been given, it seems clear enough on the evidence that she would have issued proceedings against her former employer. In the circumstances, it seems clear enough that the limitation period commenced to run against the appellant under s.5(1A) well before she saw her solicitors in March 1993, probably towards the end of 1984 or at the latest, by June 1985.

In its cross-appeal and notice of contention the respondent attacked, inter alia, his Honour’s provisional assessment of damages. Both parties asked that, if it upheld the appeal, this Court also resolve the issue of damages rather than remitting it to the County Court for determination. In the ordinary case, such a course would probably have been the most appropriate way to proceed, but having heard the parties on this issue, the Court concluded that it could not sensibly assess the damages mainly because of the number of factual and legal issues about which there is an absence of reasons from the learned trial judge as to how he resolved them. In those circumstances, for us to have proceeded to assess the correctness or otherwise of his Honour’s assessment would have involved a degree of speculation on our part which would not have been in the interests of either party.

In the circumstances, therefore, I would propose that the appeal be allowed and the matter remitted to the County Court on the question of damages.

---

[2000] VSCA 230

12 December 2000