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Law Bulletin - August 2006

Practice and Procedure

Discretion granted on limitation in deafness case

The claimant had completed an audiometric questionnaire in March 1999 confirming that he had hearing problems and that he understood that exposure to high noise levels could cause hearing loss. He had worked for a company that closed down in 1982.

He did not start his action until two years after March 2002. Despite this two-year delay, the Judge allowed the case to proceed because, as the defendants’ premises had closed in 1982, there would be no further prejudice to the defendants by bringing the claim than there would have been had he commenced proceedings within the three-year limitation period.

Bjork -v- British Alcan Commercial Extrusions. St Helens County Court 20 March 2006.

Damages

English Law applies to damages for accident in Australia

The House of Lords, overturning a decision of the Court of Appeal, has held that, in proceedings brought in England for damages for personal injuries arising from a motor accident in New South Wales, the quantum of damages should be calculated in accordance with the law of England rather than that of New South Wales.

The defendant lost control of the vehicle she was driving and it turned over causing the claimant to suffer severe injuries as a result of which he is now tetraplegic. The claimant was English and the defendant Australian. Under the law of New South Wales, the claimant was likely to recover about 30 per cent less than he would under English law.

The issue was whether the assessment of damages was a matter of substance, which should be calculated in accordance with the law of New South Wales, or a matter of procedure, which fell to be determined in accordance with English law. The court unanimously held that the assessment of damages was a matter of procedure.

Harding -v- Wealands. House of Lords, 6 July 2006.