dissenting.
The application of statutes of limitation and statutes of ultimate repose often leads to harsh results; that is, actions otherwise meritorious, many times must be dismissed because they are not commenced within the time provided by law. The time-of-discovery rule mitigates the operation of statutes of limitation by providing that the period within which an action must be brought be measured from the time an injured person knew or should have *322known of his or her injury and its cause, thus eliminating the unrealistic requirement that the person file a suit before becoming aware of the injury or those responsible for it. A statute of repose establishes an ultimate time limit on the filing of an action, in this case ten years from the date of a product’s purchase, whether or not an injury and its cause are known. Although the majority accepts the time-of-discovery rule and although plaintiff filed her action within the ten-year period of repose, the majority holds that this action is barred. I am convinced that this harsh result, which leaves plaintiff and others like her without remedy, is not required by the applicable statute. Therefore, I must respectfully dissent. This case should be reversed and remanded for trial.
In my opinion, the legislature did not intend ORS 30.905 to bar the claim of a plaintiff under these circumstances:
(1) plaintiffs injury was sustained and the fact of her injury known within eight years of the insertion of the Daikon Shield;
(2) the action seeking recovery for that injury was commenced not later than two years from the date on which she knew or should have known of the fact of the injury and defendant’s causal connection with it; and
(3) the action was commenced not more than ten years from the date of the Daikon Shield’s insertion.
The majority concludes that ORS 30.905 requires a cause of action to “accrue” within eight years and reasons that, because plaintiff alleges in her complaint that she did not learn of defendant’s causal connection with her injury until approximately nine years after the date of the Daikon Shield’s insertion, her action is barred. The majority’s construction is based on the following assumptions and deductions theréfrom:
(a) “In Baird [v. Electro Mart, 47 Or App 565, 615 P2d 335 (1980)], we decided * * * that the drafters of ORS 30.905 intended a result consistent with a policy to limit a manufacturer’s liability exposure to a ten-year period and to afford all plaintiffs injured within that period a two-year period of time in which to commence an action.” 59 Or App at 315. (Emphasis added.)
*323(b) “ ‘The committee discussions indicate this objective was to be accomplished by providing that if an injury occurred within eight years of the date the product was first purchased, the injured party had an additional two-year period following the injury to bring the action. * * * ORS 30.905 allows commencement of an action for injury based on product liability within two years of the injury complained of if the injury occurred within eight years of the first purchase of the product for use or consumption. * * *’ 47 Or App at 570, 572.” 59 Or App at 316, citing Baird v. Electro Mart, supra. (Emphasis added.)
(c) “In the context of Baird, the ‘injury’ referred to was an actionable injury, i.e., its causal connection with the defendant was known. The key to the resolution of this case * * * turns * * * upon our determination of when an injury occurs for the purposes of analyzing statutes of limitation.” 59 Or App at 316. (Emphasis added.)
(d) For the purposes of ORS 30.905(2), an injury is a legal injury and is “actionable” when “a physical injury occurs and * * * the defendant is recognized as the source of the harm.” 59 Or App at 320. (Emphasis added.)
(e) “[T]he ‘injury’ which we said in Baird must occur within eight years and the injury triggering the running of the two-year statute of limitations in ORS 30.905(2) [should be] construed consistently to mean ‘legal injury.’ ” 59 Or App at 320. (Emphasis added.)
(f) Because plaintiff did not “discover the defendant’s causal connection until after the eighth year, no cause of action accrue[d] within eight years and [plaintiffs] claim is barred.” 59 Or App at 321.
The majority’s analysis depends largely on the validity of the assumption that it is appropriate to construe the “injury” to which we referred in our decision in Baird v. Electro Mart, 47 Or App 565, 615 P2d 335 (1980), to mean “legal injury,” however the latter term might be defined. That assumption means, in effect, that the legislature intended that any event, regardless of its character, that initiates the running of the two-year limitation of ORS 30.905(2) must take place within the eight-year period of ORS 30.905(1), or else an action arising out of an injury sustained during that eight-year period is barred. This primary assumption and the resulting determination that application of a discovery rule to ORS 30.905(2) “pushes” *324the date of plaintiffs “legal injury” beyond the eight-year period of ORS 30.905(1) and bars this action, as the majority holds, appear to have no basis or purpose other than the preservation of the symmetry attributed to the interaction of subsections (1) and (2) of ORS 30.905 by this court in Baird in a fundamentally different context on the basis of a legislative history that was silent on the problem of discovery.
Finally, the construction of ORS 30.905 adopted by the majority leads to a result contrary to the intent of the legislature to insure by the enactment of ORS 30.905 that a person sustaining an injury attributable to a defective product within eight years of the product’s purchase would have a reasonable time within which to bring an action to recover damages for the injury.
THE BAIRD DECISION
In Baird v. Electro Mart, supra, the plaintiff purchased a television on March 7, 1970. On January 1, 1978, within eight years of the date of purchase, the television exploded, causing a fire that damaged her home. She filed a product liability action on March 19, 1979, more than eight years from the date of purchase, but less than ten years from that date. The defendants contended that ORS 30.905 required that an action be commenced within two years of the injury, but in no event more than eight years from the date of the product’s purchase. From a review of the legislative history of ORS 30.905, we determined that the legislature had intended to enact a ten-year period of ultimate repose for product liability actions comparable to the period set out in ORS 12.115, and that
“* * * this objective was to be accomplished by providing that if an injury occurred within eight years of the date the product was first purchased, the injured party had an additional two-year period following the injury to bring the action. That two-year period was characterized as a ‘grace period’ by the committee. * * *” 47 Or App at 572. (Emphasis added.)
We determined that it would be inconsistent with the expressed intent to construe ORS 30.905 as imposing an *325overall eight-year limitation on the filing of product liability action and held that:
“* * * ORS 30.905 allows commencement of an action for injury based on product liability within two years of the injury complained of if the injury occurred within eight years of the first purchase of the product for use or consumption. It was error to sustain defendants’ demurrer.” 47 Or App at 572.
The majority observes that in Baird the “injury” and the plaintiffs discovery of its cause were simultaneous and that, therefore, we did not consider the issue presented here. In addition, we did not consider the implications of distinguishing the two events, whether occurring simultaneously or otherwise. Those implications in the context of a product liability action have become evident only in light of our decision today that a discovery rule should apply to such actions. Having acknowledged the difference between the two cases, the majority, nevertheless, attempts to adapt the holding in Baird to the circumstances of this case by conforming “injury” in Baird to the concept of “injury” that follows from construing a statute of limitations as incorporating a discovery rule. The two contexts are fundamentally different, and the application begs the question the resulting rule purports to resolve. Although it is certainly true, as the majority asserts, that (1) the “injury” in Baird was an “actionable” or “legal injury,” and that (2) we held in Baird that ORS 30.905 allows commencement of an action for injury within two years of the injury complained of if the injury occurred within eight years of the product’s purchase, it does not follow that the events we have determined here are required to occur before an “injury” becomes “actionable” must also take place within that eight-year period.
The majority has expanded the scope of our decision in Baird and then used Baird to support its holding. The process is analytically unsound, and the rule generated thereby, when applied, leads to results consistent only in the abstract.
*326(A) Comparison of Facts and Results in Baird and Present Case:1
Baird Plaintiff
Injury Sustained 7 years and 10 months from date of purchase 6 years and 7 months from date of purchase
Complaint Filed 9 years and 12 days from date of purchase 9 years and 4 months from date of purchase
Action
Commenced Yes Yes2
Within Limitation Period of ORS 30.905(2)
ORS 30.905 Bars No Yes3
The Action
(B) Baird in a Discovery Context:
Assume the existence of the same sequence of events in Baird, except for the following: the cause of the fire in the plaintiffs home was unknown at the time of occurrence; the plaintiff did not learn the cause of the fire until she received a report from the fire department on *327April 7, 1978, eight years and one month from the date the plaintiff purchased her television.
Injury Sustained 7 years and 10 months from date of purchase
Cause of Injury Learned 8 years and 1 month from date of purchase
Complaint Filed (i) 9 years and 12 days from date of purchase
(ii) Within 2 years of date injury sustained
(iii) Within 2 years of discovery
ORS 30.905 Bars the Action Yes
The majority holds that “actionable injury within eight years [of the date of purchase] is the sine qua non of the grace period” and that “a cause of action is not actionable until a physical injury occurs and until the defendant is recognized as the source of the harm.” In the example above, according to the majority’s analysis, there was no actionable injury within eight years of purchase, therefore, the action would be barred. This is true, even though the complaint was filed within two years of the fire.
LEGISLATIVE HISTORY
What was to become ORS 30.9054 was introduced as HB 3039, Section 7, during the 1977 Regular Session of the legislature.5 As originally drafted, HB 3039 contained *32824 sections and was to be, in essence, a “renovation of the common law of products liability.”6 As part of the “renovation,” the bill included provisions for a statute of ultimate repose and a statute of limitations to be applied to product liability actions.
*329We stated in our discussion of the legislative history of ORS 30.905 in Baird v Electro Mart, supra, that these provisions were intended to correct specific problems arising from the application of ORS 12.1Í5 and 12.110(1) to such actions; i.e., (1) as applied to product liability actions, the period of ultimate repose, under ORS 12.115, could begin and end at different times for different defendants;* *****7 and (2) even though ORS 12.110(1) allowed two years from the accrual of the cause of action to file a complaint, causes of action accruing less than two years from the end of the period of ultimate repose had to be filed in less than two years.8
*330To solve the first problem, it was the express intent of the legislature that the period of repose be identical for all defendants in a particular action, and to achieve that purpose, it was determined that the period would run for all defendants from “the date on which the product was first purchased for use or consumption.” ORS 30.905. See Minutes, House Committee on Judiciary, May 5, May 11 and May 16, 1977. See also Baird v. Electro Mart, supra, 47 Or App at 569-70.
The solution to the second problem was more complex. The legislature intended by its enactment of ORS 30.905 to retain a ten-year period of ultimate repose and, at the same time, to allow all plaintiffs injured within the time provided, a full two years to bring an action. In Baird u. Electro Mart, supra, 47 Or App at 572, we explained that the legislature sought to accomplish this goal by providing that a plaintiff would have a “grace period” of two years in which to bring an action following an injury sustained during the eight years after the purchase of the defective product. Thus, the legislature supposed, a party injured on the last day of the designated period would have the same amount of time to file his action as one injured on the first day, yet, as before, no action could be commenced more than ten years from the date of purchase. See Minutes, House Committee on Judiciary, May 16, 1977.
The legislature, in attempting to remedy the problems noted above, did not have “occasion to define or *331construe the term ‘injury’ or to discuss the significance of that term” in the context of a situation in whieh the occurrence of a physical injury, sustained within eight years of the date of purchase, and the discovery of a defendant’s causal involvement are not simultaneous events.9 The discussions by the House Committee on Judiciary of HB 3039, which became ORS 30.905, indicate that, as the legislature refined the mechanics of that bill, it assumed that a cause of action would accrue immediately upon the occurrence of a physical injury.10 Thus, when designing *332this statutory system to maintain the existing ten-year limitation on the commencement of product liability actions and at the same time “to give every potential plaintiff a 2 year period from time of injury” in which to file an action, 11 the legislature assumed that the two-year period of ORS 30.905(2) would run from the date the physical injury was sustained. Given the nature of the injury contemplated by the legislature, that assumption was understandable. It is also significant that Schiele v. Hobart Corporation, 284 Or 483, 587 P2d 1010 (1978), was decided after the legislature’s consideration and enactment of ORS 30.905. In Schiele, the court construed ORS 12.110(1) as incorporating a discovery rule when applied to a product liability action.12
*333The injury a plaintiff sustains without knowledge of the fact of the harm or, as here, without knowledge of its cause, presents new and special problems. The majority has decided, and I agree, that, where an injury is sustained but the fact of the injury or its cause is unknown, the two-year period provided by ORS 30.905(2) should not commence when the injury is inflicted. This reasonable approach is consistent not only with prior decisions by the Supreme Court and by this court but also with what I perceive to be the intent of the legislature by enacting ORS 30.905 to afford those sustaining injury within eight years of the date of a product’s purchase a reasonable time within which to bring an action for injury caused by the product. However, I believe that, in reaching the conclusion that ORS 30.905 bars plaintiffs action, the majority has disregarded the significance of the following considerations: (1) the legislature apparently did not consider the problems of sustained but undiscovered injury; (2) the operation of ORS 30.905, as explained by the legislature and described in Baird, assumes the accrual of a cause of action upon the occurrence of a physical injury; and (3) the majority’s construction of *334ORS 30.905 brings about a result inconsistent with the legislative intent to allow those sustaining injury within eight years of a product’s purchase to bring an action so long as the requirements of ORS 30.905(2) are satisfied and the action is filed within ten years of the product’s purchase.
By extending the redefinition of “injury” required by the discovery rule to the analysis in Baird of the operation of ORS 30.905, the majority has fundamentally altered the major premise of the rule it purports to apply, i.e., “* * * there must be an injury within eight years * * 59 Or App at 320. The symmetry of form remains; the word “injury” is unchanged. For the reasons discussed above, I question whether there is also a resulting symmetry of substance.
ORS 30.905 DOES NOT BAR PLAINTIFF’S ACTION.
If ORS 30.905 simply provided , for an eight-year period of ultimate repose, the majority’s analysis and conclusion would be correct. In that event, no action could be commenced beyond eight years from the date of a product’s purchase. The character of the event determining the date of accrual of a product liability cause of action would be of no consequence, because a cause of action necessarily would have to accrue within that period in order for the action to be commenced within that period. ORS 30.905 is not a traditional statute of ultimate repose but a “hybrid,” combining what, on its face, appears to be an eight-year period of ultimate repose (ORS 30.905(1)) with a two-year statute of limitations (ORS 30.905(2)) and, as we explained in Baird v. Electro Mart, supra, 47 Or App at 570, constructed “to limit the manufacturer’s exposure to a ten-year period.”
Under ORS 30.905, product liability actions may be commenced between eight and ten years from the date of purchase of an allegedly defective product. In Baird, we determined that, under the Circumstances presented in that case, the plaintiff could bring an action within that period; i.e., plaintiff sustained injury within eight years of the product’s purchase and commenced the action within two years of that occurrence. It is within that context that the operation of the period of repose and the “grace period” provided by ORS 30.905, contemplated by the legislature *335and analyzed in Baird, must be understood. In my opinion, neither the legislative history nor our decision in Baird can properly be read as excluding from the benefits of the “grace period” plaintiffs whose claims arise under circumstances not considered therein. This is particularly true where, as here, a fundamental premise on which those authorities rest is altered.
The application of a discovery rule in itself provides a “grace period” of sorts; i.e., during the period an injury sustained is either undiscovered or its cause unknown, the applicable statute of limitation does not run. When the injury is sustained within eight years of the product’s purchase, such a situation creates an anomaly in the system designed by the legislature and explained and applied in Baird. To allow the plaintiff a full two years from the date of discovery may extend the exposure of potential defendants beyond the intended ten-year limitation on the commencement of product liability actions. To require the plaintiff to file an action within two years of the date the injury is sustained assures that the action will be commenced in all cases within the ten-year period but will not give every potential plaintiff two years in which to bring an action; i.e., the two-year period runs even though the plaintiff is unaware of the injury. Neither alternative is consistent with the legislative intent. Although the approach adopted by the majority avoids the dilemma, that approach is also inconsistent with the legislative intent. In this case, it serves to bar an action by a plaintiff who sustained an injury within eight years of the product’s purchase, and filed an action within ten years of that date and in compliance with ORS 30.905(2). There is another approach that avoids the dilemma and results in considerably less damage to the legislative intent than that .which follows from the application of the majority’s rule.
I would propose the following rule for application in such cases: (1) where an injury is sustained and the fact of the injury is known within eight years from the date of purchase and (2) a suit seeking recovery for the injury is filed within two years of the date on which the plaintiff knew or should have known of the fact of the injury and of defendant’s connection with it but (3) not more than ten years from the date of purchase, the action is not barred by *336ORS 30.905.13 I realize that, under the principle I have proposed, an injured person, such as plaintiff in this case, may, as a practical matter, have less than the intended two years to bring an action. However, I do not believe that problem would be remedied by barring such an action altogether.
Assuming, without conceding, that the majority is correct in concluding that discovery must occur within eight years of the product’s purchase, it is not clear that the trial court was justified in granting defendant’s motion for judgment on the pleadings.
Although this action was filed more than two years from the date on which injury was sustained, and this fact is evident from the face of the complaint, a judgment on the pleadings in favor of defendant on this ground is not proper because, as we hold here, the two-year period provided by ORS 30.905(2) does not begin to run when the injury is sustained but when the injury and its cause are known or should be known. Thus, the relevant inquiry for purposes of ORS 30.905(2) becomes whether plaintiff knew or should have known more than two years before commencing this action that the dangerously defective nature of defendant’s product caused her injury. Shaughnessy v. Spray, 55 Or App 42, 51, 637 P2d 182 (1981), rev den 292 Or 589 (1982). In Shaughnessy, we determined that this was a jury question. In that case, the plaintiff had alleged in her second amended complaint:
“Plaintiff had no knowledge or reason to know and did not discover the unreasonably dangerous nature of defendants Smith - Klines’s and Eli Lilly’s product as herein alleged or of the negligence of these defendants as herein alleged until a period of time less than three years from the date of the filing of this complaint against defendants Eli Lilly and Smith - Kline.” 55 Or App at 45.
*337In this case, plaintiff alleged in her complaint that:
“* * * at all times material herein, the plaintiff had not been advised as to the cause of her chronic intrauterine infections and did not learn, nor did she have reason to learn, of the relationship between the defective nature of the Daikon Shield and her chronic intrauterine infections. The plaintiff did not learn of the relationship until a date on or about May 1, 1980.”
The date on which a plaintiff learns of an injury or its cause is not the pertinent date. The court in Schiele v. Hobart Corporation, supra, 284 Or at 489-90, rejected the argument that nothing short of actual knowledge would have the effect of starting the statutory period and held that the period began to run “when a reasonably prudent person associates his symptoms with a serious or permanent condition and at the same time perceives the role which the defendant has played in inducing that condition.” I am not convinced that this complaint alleges that discovery, so defined, occurred more than eight years from the date of purchase. See ORCP 12A.14
The following illustration is helpful in understanding the sequence of events in this case.
Under the construction of ORS 30.905(2) we adopt today.
If ORS 30.905 in fact provided for an eight-year period of ultimate repose, i.e., barred the commencement of actions beyond eight years from the date of purchase, both the action in Baird and the action in this case would, of course, be barred. See discussion at 11-12, infra.
Or Laws 1977, ch 843, § 3.
The bill was sponsored by Representatives Magruder, Gilmour, Kulongoski, Markham, Martin, Van Vliet and Whallon, and its introduction and passage were advocated by members of the business community (particularly those engaged in the production and sale of industrial equipment) and members of the insurance industry. These advocates urged enactment of HB 3039 as a solution to what they asserted to be a “crisis” in the area of product liability insurance. The crisis was caused by ever-increasing product liability premiums which, according to supporters, cut deeply into profits forcing many businesses to either close or become self-insured and risk the loss of their assets to a single successful plaintiff. Those supporters attributed the increasing insurance costs to, among other things: large damage awards by juries; the increasing number of product liability suits; “liberal” and “unusual” interpretations of tort law by the courts; and actions arising out of injuries caused by old or modified products and equipment. Minutes, House Committee on Judiciary, April 18, 1977.
Vetri, Legislative Codification of Strict Products Liability Law in Oregon, 59 Or L Rev 363, 373 (1981). In this article, Professor Vetri notes that in its original form, HB 3039 embodied the following provisions:
“(1) A legislative definition of ‘unreasonably dangerous’ — ‘dangerous to an extent beyond that which would be contemplated by the ordinary and reasonable purchaser * *
“(2) A limitation of liability to ‘intended uses’ instead of foreseeable uses;
“(3) A preclusion of liability to bystanders;
“(4) A rebuttable presumption against liability if conformity with industry practice is shown;
“(5) A total defense to liability if compliance with the state of the art is shown;
“(6) Evidence rules barring the admission for any purpose of evidence regarding changes in the state of the art or industry custom, or of evidence regarding changes in the design or manufacture of the product if the change took place after the design or manufacture of the product;
“(7) Statutory and regulatory safety provisions were to be inadmissible for any purpose;
“(8) A special product liability statute of ultimate repose;
“(9) A limitation on contingent fees;
“(10) A rule that modification of a product by a user would bar liability of the seller;
“(11) A limitation on punitive damages and a requirement that liability for those damages must be proven beyond a reasonable doubt; and
“(12) A procedure for a review panel to pre-screen the issues of liability and damages in products liability cases.”
During the Judiciary Committee’s work session on May 5, 1977, significant changes in both the form and substance were offered by the bill’s proponents. The changes included a revision of the language of Section 7. (See 59 Or App at 313 n 2.) In effect, the sponsors and advocates of the bill, and the supporters of other product liability bills had agreed to withdraw their proposals, and to submit certain sections of HB 3039 in the form of proposed amendments, “for immediate passage.” Minutes, House Committee on Judiciary, pp 1-2, May 5, 1977. Those sections requiring “immediate passage” were distributed as amendments to Sections 4, 6, 7 and 10 of HB 3039, Exhibits A, B, C and D, House Committee on Judiciary, May 5, 1977. The committee did agree to table the other product liability bills and thereafter considered HB 3039 in its proposed amended form, i.e., consisting of only the proposed amended Sections 4, 6, 7 and 10. Proposed amended Section 7 provided that:
*329“(1) Notwithstanding subsection (1) of ORS 12.115 or ORS 12.140, an action for the recovery of damages for death, personal injury or damage to real or personal property, including any action based upon an implied warranty, arising out of any design, inspection, testing, manufacturing or other defect in a product, arising out of any failure to warn regarding a product or arising out of any failure to properly instruct in the use of a product shall be commenced within two years from the date on which the death, injury or damage occurs, but not later than ten years after the manufacture of the product.
“(2) Nothing in this section shall be construed to extend any period of limitation otherwise established by law, including but not limited to the limitations established by ORS 12.110 and ORS 72.725.” (Emphasis added.)
ORS 12.115, the statute of ultimate repose, provided as follows:
“(1) In no event shall any action for negligent injury to person or property of another be commenced more than 10 years from the date of the act or omission complained of.
“(2) Nothing in this section shall be construed to extend any period of limitation otherwise established by law, including but not limited to the limitations established by ORS 12.110.”
That statute was first applied to product liability actions by the Supreme Court in Johnson u. Star Machinery Co., 270 Or 694, 530 P2d 53 (1974). Because the ten-year period ran from “the date of the act or omission,” the period of repose could begin and end at different times as to individual defendants in the same product liability action. This is true because, presumably, the “date of the act or omission” for a defendant-manufacturer of a defective product would be the date of manufacture, and for a defendant-retailer, the date of sale. ORS 12.115 remains in effect, but is no longer applicable to product liability actions.
The statute of limitations applicable to product liability actions at the time HB 3039 was proposed was ORS 12.110(1). See Johnson v. Star Machinery Co., supra, 270 Or at 698. That statute provided, in pertinent part, that:
“* * * An action for assault, battery, false imprisonment, for criminal conversation, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years * *
*330The two-year period began to run at the time “the cause of action * * * accrued.” ORS 12.010. Under certain circumstances, ORS 12.115, the ultimate repose statute, would have the effect of either cutting short the two-year period provided by ORS 12.110(1) or eliminating the right to bring the action altogether. A plaintiff would have less than two years to commence the action if his cause of action “accrued” between the eighth and tenth years following “the act or omission complained of,” and if the cause of action “accrued” after the tenth year, the plaintiff would be unable to bring the action at all. As the court stated in Josephs v. Burns & Bear, 260 Or 493, 500, 491 P2d 203 (1971):
“* * * QRg 12.115(1) was intended to apply as a ten-year limitation from the date of the act or omission regardless of when the damage resulted or when the act or omission was discovered.”
ORS 12.110(1) has since been amended to delete the reference to “criminal conversation” and to add the following: “* * * provided that in an action at law based upon fraud or deceit the limitation shall be deemed to commence only from the discovery of the fraud or deceit.” The statute otherwise remains in effect, although it is now inapplicable to product liability actions.
See discusion by majority (59 Or App at 313, n 2). The taped record of the June 21, 1977, meeting of the Senate Committee on Trade and Economic Development indicates that a witness before that committee made reference to the discovery issue but that the question was not expressly considered by the committee. Ms. Dana Weinstein, a law student at the University of Oregon, told the committee that the eight-year period within which injury must occur, was
“* * * inconsistent with the life expectancy [of a product] especially in regard to industrial equipment and another example may be the time needed to discover adverse drug reaction. The eight-year period that is listed is too short for that." Tape 36, Side 1. (Emphasis added.)
For the reasons discussed by the majority in note 2 of its opinion, this testimony is of “dubious value” in resolving the present question.
Professor Dominick Vetri, of the University of Oregon School of Law, a participant in several committee discussions of HB 3039, suggested the need for a grace period and the framework for the operation of such a period' during a committee work session.
“Mr. Vetri said he thought section 7 recalled the old question of date of sale vs the date of manufacture. The bill makes the point ‘ten years after the manufacture of the product’. The Johnson vs Starr [sic] Machinery case applied the ultimate-repose statute in strict liability tort act. It made the point that change between the date of sale and the date of manufacture and referenced to the date of manufacture for the negligence concept and date of sale for the strict liability concept. Those two points are the critical ones in terms of the language of the bill as it is now written. One other minor point needed to be dealt with and that is whether the accident occurred within the ten year period not whether the lawsuit was brought within the ten year period. Section 7 puts people who are injured in the ninth and a half year at a disadvantage. A grace period is needed to protect the interest of those people. Mr. Vetri recommended the language ‘the death, injury or damage must have occurred within ten years from the date of the sale of the product’. The accident must be shown to have happened in the ten year period and, in all cases, the action must be brought within two years from the date of the accident.
‘‘Rep. Myers said then every alleged, potential claimant has the full two years so long as the injury occuring [sic] incident was within the ten year period.” Minutes, House Committee on Judiciary, May 11, 1977. (Emphasis added.)
Other witnesses and committee members during this and other meetings used similar terms and phrases to describe the event that must occur within a specified period and that would trigger the running of the two-year grace period: “the *332action must be brought within two years from the date of the accident’; “every alleged potential claimant [sic] has the full two years so long as the injury - occurring incident was within the ten year period”; “an action must be filed within two years of the accident”; “no one’s talking about anything other than a 10 year period for ultimate repose except to the extent that we’re talking about some extension for purposes of claims arising within a certain point”; “the injury-causing event’; “to give every potential plaintiff a 2 year period from time of injury”; “if an accident happens 10 days before the statute expires, it seems ridiculous to say the person must somehow institute an action within that 10 day period which is not a reasonable length of time”; “the accident must have occurred within a period that is 2 years less than the extension”; “* * * If someone is injured on the 8th anniversary, they would have 2 years with[in] which to bring their lawsuit.” It should also be noted that there was substantial testimony before the committee concerning on-the-job injuries caused by industrial machinery and equipment. See Minutes, House Committee on Judiciary, April 18, May 11 and May 16, 1977.
Minutes, House Committee on Judiciary, May 16, 1977.
As noted by the majority, the decision in Berry v. Branner, 245 Or 307, 421 P2d 996 (1966), provided the “foundation” for the “trend” or “tendency” of the Supreme Court to interpret statutes of limitations, in particular ORS 12.110(1), as commencing to run at the time of discovery. 59 Or App at 317. In Johnson v. Star Machinery Co., supra, 270 Or at 699-700, the court observed that the legislature had originally enacted ORS 12.115(1), together with ORS 12.110(4), in response to the opinion in Berry v. Branner, supra. ORS 12.110(4) required that a medical malpractice action be commenced within two years after the time the injury was discovered or should have been discovered (thus codifying the holding in Berry) and further provided that no action could be brought after seven years from the time of the treatment or omission on which the action was based. As the court in Johnson v. Star Machinery Co., supra, explained:
“At the same time, the legislature recognized that the rationale of Berry might be applicable to other situations in which negligence went understandably undetected until after the pertinent statute of limitations expired. As a result, as part of the same legislative act, it enacted ORS 12.115(1), which established a 10-year statute of ultimate repose for such cases. We said in Josephs v. Burns & Bear, supra at 498-99:
*333“ ‘In Berry, we held that the cause of action did not “accrue” until the patient knew or, in the exercise of reasonable care, should have known of the injury inflicted upon her. It is clear that the legislative committees which were dealing with the problem of long delayed tort litigation brought about by lack of discovery considered the possibility of defining the time when a cause of action “accrued” as a response to the Berry decision. It is our belief that the legislature chose as preferable to the amendment the enactment in one bill of ORS 12.110(4) relating specifically to medical malpractice claims and of ORS 12.115(1) relating generally to other tort claims. ORS 12.115(1) left the discovery rationale of Berry intact, should this court subsequently chose [sic] to apply the Berry rationale to torts other than medical malpractice, but prescribed an ultimate cut-off date in any event for the commencement of tort claims litigation.”’ 270 Or at 699-700. (Emphasis added.)
Thus, ORS 12.115, the applicable statute of ultimate repose at the time ORS 30.905 was being considered by the legislature, was enacted for the purpose of establishing a maximum period within which actions to which ORS 12.110(1) applied could be commenced, notwithstanding the application of a time-of-discovery construction to the language of that statute. The legislature, in response to the Berry decision, did not expressly either foreclose or provide for a time-of-discovery construction of ORS 12.110(1), as applied to actions other than those involving medical malpractice, but instead enacted ORS 12.115(1) in the event that the courts decided to further extend the discovery principle. The Supreme Court did so in U.S. Nat’l Bank v. Davies, 274 Or 663, 548 P2d 966 (1976) (legal malpractice) and Schiele v. Hobart Corporation, 284 Or 483, 587 P2d 1010 (1978) (product liability and negligence). (See 59 Or App at 317-19.)
To hold otherwise is to reach an unreasonable result. Plaintiff alleges that she did not have “reason to learn” of the defective nature of the shield “at all material times herein,” i.e., at least from the date on which she sustained the injury until the end of the eight-year period. Had she obtained such knowledge on the last day of the eighth year, under the construction of ORS 30.905(2) we adopt today and our holding in Baird, she would have had until the last day of the tenth year after the date of insertion to file an action for damages. It is unreasonable and unfair to conclude that, because she acquired such knowledge after the eighth year, her suit filed before the end of the tenth year is somehow barred.
ORCP 12A provides:
“All pleadings shall be liberally construed with a view of substantial justice between the parties.”