Plumb v The Electricity Commission of New South Wales

The applicant, Plumb, sought special leave to appeal to the High Court of Australia against a decision of the New South Wales Court of Appeal. The dispute concerned the interpretation of provisions within the *Limitation Act 1969* (NSW), specifically sections 60F and 60G, and their application to transitional provisions in Schedule 5, relating to causes of action accruing before 1 September 1990. The core of the disagreement revolved around whether the Court of Appeal had correctly distinguished between "latent injury" and other types of injuries when applying these sections.

The legal issues before the High Court included whether the Court of Appeal erred in its interpretation of section 60F of the *Limitation Act*, particularly in its distinction between latent injuries and injuries where the extent or consequences manifest slowly. Furthermore, the court was required to determine whether the Court of Appeal had correctly interpreted the transitional provisions in Schedule 5, specifically clause 4, in relation to the power granted by section 60G, and whether this power was imported free of the restraints imposed by section 60I. The applicant argued that the Court of Appeal's reliance on the distinction between latent and obvious injuries, as seen in previous cases like *James Hardie & Co Pty Ltd v Wootton*, was misplaced given the wording of the enacted section 60F.

The applicant contended that section 60F, as enacted, dealt with a broader range of situations than just latent injuries, encompassing instances where the plaintiff was unaware of the fact, nature, extent, or cause of the injury. They argued that the Court of Appeal's focus on the "latent injury" aspect of *Wootton* overlooked the fact that section 60F, in its legislative form, addressed situations where consequences or the tortfeasor's role remained hidden, even if the initial injury was obvious. The applicant further submitted that Schedule 5, by incorporating the power under section 60G, did not implicitly import the qualifications found in section 60I, a point that had been a central issue in the *Wootton* decision. The applicant's argument was that the Court of Appeal had fallen into error by assuming a distinction between latent and obvious injuries that the Act, as enacted, no longer maintained in the context of the transitional provisions.