McLean v Sydney Water Corporation

Link copied
Case Copied 18 min read

Reported Decision:

 [2001] ACL Rep 255 NSW 11

New South Wales


Court of Appeal

CITATION: McLean v Sydney Water Corporation [2001] NSWCA 122 revised - 23/08/2001
FILE NUMBER(S): CA 40530/99
HEARING DATE(S): 20 April 2001
JUDGMENT DATE:
20 April 2001

PARTIES :
George Bruce McLean ((Deceased) represented by Nita Mary McLean) - Appellant
Sydney Water Corporation - Respondent
JUDGMENT OF: Stein JA at 31; Giles JA at 1; Hodgson CJ in Eq at 32
LOWER COURT JURISDICTION : District Court
LOWER COURT
FILE NUMBER(S) : 		DC 3021/99
LOWER COURT
JUDICIAL OFFICER :		 Christie DCJ
COUNSEL: K W Andrews - Appellant
D J Brogan - Respondent
SOLICITORS: Sowden Akerman - Appellant
Bartier Perry - Respondent
CATCHWORDS: LIMITATIONS - extension of time - very long lapse of time - no prejudice to defendant (other than general prejudice) - fair trial possible - whether other factors could be taken into consideration when determining justice and reasonableness of extension - whether extension was just and reasonable - no error in exercise of discretion. D
CASES CITED:
 BHP Steel (AIS) Pty Ltd v Lakouski (2000) NSWCA 334;
Brisbane South Regional Health Service v Taylor (1996) 186 CLR 541;
Drayton Coal Pty Ltd v Drain (CA, 22 August 1995, unreported);
Holt v Wynter (2000) 49 NSWLR 128;
Jones v Royal Hospital for Women (CA, 24 July 1998, unreported).
DECISION: Appeal dismissed with costs.


IN THE SUPREME COURT


OF NEW SOUTH WALES


COURT OF APPEAL


                                CA 40530/99

        DC 3021/99

                                STEIN JA
                                GILES JA

HODGSON CJ in Eq

Friday 20 April 2001

McLEAN v SYDNEY WATER CORPORATION
JUDGMENT

1    GILES JA: Mr George McLean applied for extension of the time within which he might commence proceedings against the respondent claiming damages in respect of noise induced hearing loss. On 2 July 1999 Christie DCJ dismissed his application. Having obtained leave, Mr McLean appealed from his Honour’s decision.

2    Mr McLean died shortly after instituting his appeal. His widow, Mrs Nita McLean, obtained special letters of administration ad litem and was substituted as the appellant.

3    Mr McLean was born in 1926. He was employed with the State Rail Authority from 1944 to 1959 and then with the respondent from about 1961 to 1985. He was in retirement from leaving the respondent until his death.

4    According to the evidence of Mr McLean on the application, in the course of his employment with the respondent he was required to work in and around noisy equipment and in underground situations which were extremely noisy, and was regularly exposed to loud noise. The respondent first provided hearing protection in the early 1970s. Mr McLean was not offered a choice of hearing protection, but was only provided with ear muffs which were not personally fitted to him. It was often necessary to wear the earmuffs with the headband behind his head in order to wear a safety helmet or other personal safety equipment.

5    Mr McLean first noticed hearing loss in about late 1961. In 1974, he was appointed…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read McLean v Sydney Water Corporation and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2001] NSWCA 122
Decision Date

CaseChat Overview and Summary

McLean (the appellant) sought an extension of time to commence proceedings against Sydney Water Corporation (the respondent) for damages arising from alleged negligence. The dispute concerned a claim for personal injury, with a significant period of time having elapsed since the cause of action accrued. The appeal was heard by the Court of Appeal of New South Wales, comprising Stein and Giles JJA and Hodgson CJ in Eq.

The primary legal issue before the Court of Appeal was whether the primary judge had erred in refusing to grant an extension of time for the appellant to commence proceedings. This required the court to consider the principles governing the exercise of discretion under the relevant limitation legislation, particularly in circumstances involving a very long lapse of time, and to assess whether granting such an extension would be just and reasonable. The court also had to determine whether factors beyond the absence of specific prejudice to the defendant, such as the possibility of a fair trial, could be taken into account.

The Court of Appeal found no error in the primary judge's exercise of discretion. The court reasoned that while a fair trial might be possible and the respondent might not suffer specific prejudice beyond the general prejudice inherent in a stale claim, these factors alone did not mandate the granting of an extension. The court affirmed that the ultimate question was whether it was just and reasonable to grant the extension, and that the primary judge had properly weighed all relevant considerations.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.