BAKER-MORRISON v STATE OF NEW SOUTH WALES [2009] NSWCA 35 (4 March 2009)

Last Updated: 9 March 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
BAKER-MORRISON v STATE OF NEW SOUTH WALES [2009] NSWCA 35


FILE NUMBER(S):
40307/08

HEARING DATE(S):
20 February 2009

JUDGMENT DATE:
4 March 2009

PARTIES:
Shakyra Baker-Morrison bht Alicia Baker (Applicant)
State of New South Wales (Respondent)

JUDGMENT OF:
Ipp JA Basten JA Macfarlan JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 34/07

LOWER COURT JUDICIAL OFFICER:
Johnstone DCJ

LOWER COURT DATE OF DECISION:
27 June 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
[<i>Baker-Morrison v State of NSW</i>] [2008] NSWDC 129

COUNSEL:
L King SC (Applicant)
G Bateman (Respondent)

SOLICITORS:
John Ryan, Solicitor (Appellant)
Crown Solicitors Officer (Respondent)

CATCHWORDS:
LIMITATION OF ACTIONS – date on which cause of action “discoverable by plaintiff” – whether plaintiff aware that injury “caused by fault of the defendant” – whether injury was “sufficiently serious to justify the bringing of an action on the cause of action” – meaning of “fault” – comparison of s 50D with extension of time provisions and similar provisions in other jurisdictions – objective test – key factors necessary to establish legal liability – whether taking all reasonable steps includes obtaining medical and legal advice and information – [<i>Civil Liability Amendment (Personal Responsibility) Act</i>] 2002 (NSW) – [<i>Limitation Act</i>] 1969 (NSW), ss 50C, 50D, 50F, 57B, 60A, 60G, 60I – [<i>Limitation Act</i>] 1980 (UK), s 14 – [<i>Limitation of Actions Act</i>] 1958 (Vic) ss 27D, 27F
LIMITATION OF ACTIONS – defences – onus of proof
LIMITATION OF ACTIONS – minor with capable parent – s 50D assessed by reference to knowledge of minor’s parent or what parent would have known – [<i>Limitation Act</i>] 1969 (NSW), s 50F
PROCEDURE – when proceedings commenced – [<i>Civil Procedure Act</i>] 2005 (NSW), s 19(1) – Uniform Civil Procedure Rules 2005 (NSW), r 6.2
STATUTORY INTERPRETATION – “discoverable” – “fact” – “ought to know” – purposive interpretation – statutory framework – objective test – use of cases from other jurisdictions interpreting similar provisions of Limitation Acts – comparison with extension of limitation periods provisions – [<i>Limitation Act</i>] 1969 (NSW), ss 50D
WORDS AND PHRASES – “discoverable” – “fact” – “knowledge” – “ought to know” – “proceedings commenced” – “take all reasonable steps”

LEGISLATION CITED:
[<i>Civil Liability Act</i>], ss 16, 33
[<i>Civil Procedure Act</i>] 2005 (NSW), s 19(1)
[<i>Legal Profession Act</i>] 2004 (NSW), s 347
[<i>Limitation Act</i>] 1969 (NSW), ss 18A, 50A-50F, 52, 57B, 60A, 60F, 60G, 60I
[<i>Limitation Act</i>] 1963 (UK), s 7
[<i>Limitation Act</i>] 1980 (UK), s 14
[<i>Limitation of Actions Act</i>] 1958 (Vic), ss 27D, 27F, 27K, 27L
Uniform Civil Procedure Rules 2005 (NSW), rr 6.2, 7.14

CATEGORY:
Principal judgment

CASES CITED:
[<i>Cameron v National Mutual Life Association of Australasia Ltd (No. 2)</i>] [1992] 1 Qd R 133, 136
[<i>Caven v Women’s and Children’s Health</i>] [2007] VSC 7; 15 VR 419
[<i>Dedousis v Water Board</i>] [1994] HCA 57; 181 CLR 171
[<i>Do Carmo v Ford Excavations Pty Ltd</i>] [1984] HCA 17; 154 CLR 234
[<i>Drayton Coal Pty Ltd v Drain</i>] [1995] NSWCA 131
[<i>Halford v Brookes</i>] [1991] 1 WLR 428
[<i>Hawkins v Clayton</i>] (1986) 5 NSWLR 109
[<i>Mazzeo v Caleandro Guastalegname & Co</i>] [2000] VSCA 230; 3 VR 172
[<i>Ozturk v NSW Department of Housing</i>] (unrep, 24 August 2007)
[<i>Pullen v Gutteridge Haskins & Davey Pty Ltd</i>] [1993] 1 VR 27
[<i>Rawle v Southstate Industrial Supplies Pty Ltd</i>] [2008] NSWDC 70; 7 DCLR (NSW) 134
[<i>Segal t/as Segal Litton & Chilton v Fleming</i>] [2002] NSWCA 262
[<i>Spandideas v Vellar</i>] [2008] VSC 198
[<i>Smith v Central Asbestos Co Ltd</i>] [1973] AC 518
[<i>Vellar v Spandideas</i>] [2008] VSCA 138
[<i>Windsurf Holdings Pty Ltd v Leonard</i>] [2009] NSWCA 6

TEXTS CITED:
[<i>Review of the Law of Negligence – Final Report</i>] (2002), pars 6.14, 6.19, 6.28

DECISION:
(1) Grant leave to appeal.[<br>][<br>](2) Set aside the judgment and orders of the District Court made on 27 June 2008 and, in lieu thereof, order that:[<br>][<br>](a) the defendant’s motion be dismissed, and[<br>](b) the defendant pay the plaintiff’s costs of the motion.[<br>][<br>](3) Order that the respondent pay the appellant’s costs in this Court.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40307/08

DC 34/07

IPP JA

BASTEN JA

MACFARLAN JA

4 March 2009

Shakyra BAKER-MORRISON by her tutor Alicia Baker v STATE OF NEW SOUTH WALES

Headnote

On 26 May 2004, the plaintiff, then two years old, was injured at Gosford Police Station when the fingers of her right hand were caught in the automatic sliding doors at the Station.

On 21 June 2007, being three years and 26 days after the date on which the plaintiff was injured, a statement of claim was sealed and issued. On 29 June 2007, the statement of claim was served. By notice of motion filed 27 November 2007, the respondent sought to strike out the claim on the basis that it was statute-barred, pursuant to s 50C of the Limitation Act 1969 (NSW). Johnstone DCJ ordered that the applicant’s claim be struck out because it had been filed out of time and in circumstances where no power to extend was available. The applicant sought leave to appeal from the judgment and orders of Johnstone DCJ. Leave to appeal was granted.

The issue for determination on appeal was whether the cause of action was “discoverable” by the plaintiff’s mother within the 26 day period after the accident (see s 50F): specifically, whether the plaintiff’s mother was aware, in the relevant period, that the injury to her daughter was “caused by the fault of the defendant” and that the injury was “sufficiently serious to justify the bringing of an action on the cause of action”.

The Court held, allowing the appeal (Basten JA, Ipp and Macfarlan JJA agreeing):

1. The content of the word “fact” in s 50D(1)(b) and (c) must be ascertained by reference to the whole of s 50D. ‘Fact’ describes a composite of inferences or the result of an evaluation: [27]. It refers to the key factors necessary to establish legal liability: [39].

Smith v Central Asbestos Co Ltd [1973] AC 518, referred to.

2. In s 50D(2) “ought to have known” means that the person should have inquired as to a fact, which must, in appropriate circumstances, include obtaining medical and legal advice and information: [37], [57].

3. The “fact” contemplated by s 50D(1)(b) is a relationship between the injury or death and the fault of the defendant. The relevant connection is one of causation: [28]. Since the primary particular of negligence on the statement of claim was a failure to provide “a protective guard or covering along the area of operation of the ... sliding glass doors”, until the plaintiff’s mother was aware or ought to have been aware of the availability and reasonable practicability of installation of a device to make the sliding door safer, she could not be said to be aware that he daughter’s injury was caused by a failure on the part of the State to take reasonable care for her safety: [40].

Dedousis v Water Board [1994] HCA 57; 181 CLR 171; Drayton Coal Pty Ltd v Drain [1995] NSWCA 131, considered.

Vellar v Spandideas [2008] VSCA 138; Spandideas v Vellar [2008] VSC 198, not followed.

Halford v Brookes [1991] 1 WLR 428, distinguished.

Mazzeo v Caleandro Guastalegname & Co [2000] VSCA 230; 3 VR 172, referred to.

4. To the extent that s 50D(1)(c) requires an assessment of the seriousness of injury sufficient to justify the bringing of proceedings, coherence with the broader statutory framework as well as the course of bringing an action require that the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made: [41]–[44].

Ozturk v NSW Department of Housing (unrep, 24 August 2007); Rawle v Southstate Industrial Supplies Pty Ltd [2008] NSWDC 70; 7 DCLR (NSW) 134, followed.

Caven v Women’s and Children’s Health [2007] VSC 7; 15 VR 447, not followed.

5. It was not suggested that, in the 26 day period after the accident, the plaintiff’s mother should reasonably have taken any step which she did not take. Accordingly, unless the plaintiff’s mother had the relevant knowledge, the defence must fail: [60].

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40307/08

DC 34/07

IPP JA

BASTEN JA

MACFARLAN JA

4 March 2009

Shakyra BAKER-MORRISON by her tutor Alicia Baker v STATE OF NEW SOUTH WALES

Judgment

1 IPP JA: I agree with Basten JA.

2 BASTEN JA: This matter involves an application for leave to appeal from the judgment and orders of Johnstone DCJ in the District Court, ordering that the applicant’s statement of claim be struck out because it had been filed out of time and in circumstances where no power to extend time was available: Baker-Morrison v State of NSW [2008] NSWDC 129; 7 DCLR (NSW) 186.

3 Since 6 December 2002, the limitation period for personal injury actions has been prescribed by the Limitation Act 1969 (NSW), Pt 2, Div 6 (ss 50A-50F). The primary limitation period is one of three years running from (and including) the date on which the cause of action is “discoverable” by the plaintiff: s 50C(1). What is meant by “discoverable” is defined in s 50D, the proper construction of which is critical to the determination of the present application.

Background
4 On 26 May 2004, the plaintiff’s mother (and her tutor for the purpose of the proceedings) attended Gosford Police Station to report a theft. She took with her the plaintiff, then less than two years old. Whilst in the reception area of the police station, as alleged in the statement of claim, the plaintiff bent down to pick up some lollies from the floor in the vicinity of sliding doors by which the public gained entry to the police station. As a person entered the reception area, the sliding doors automatically opened and caught the fingers of the plaintiff’s right hand. The plaintiff was taken to hospital and required an amputation of part of her right ring and little fingers, together with some reconstruction of the tendons on her ring and middle fingers. Pins were inserted in each finger during the procedure, which were removed some three or four weeks later.

5 With noteworthy celerity, the plaintiff’s mother consulted a solicitor on 1 June 2004. On the same day, he wrote to the Gosford Police, suggesting that a copy of the letter be forwarded to their public liability insurer “so the correspondence may be commenced concerning a claim for damages”. He also asked that permission be sought from the insurer “to allow a view of the door and surrounds for the purpose of this matter”. Permission was given and the solicitor inspected and photographed the offending door on 4 June 2004.

6 Some three years later, by letter dated 29 June 2007 and apparently received by the Crown Solicitor on 3 July 2007, the plaintiff’s solicitor served a copy of the statement of claim and various accompanying documents. However, proceedings were commenced with the issue of the statement of claim under the seal of the Court: Civil Procedure Act 2005 (NSW), s 19(1); Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 6.2; Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6 at [9] (Bell JA, Beazley JA agreeing) and [111] (Sackville AJA); Cameron v National Mutual Life Association of Australasia Ltd (No. 2) [1992] 1 Qd R 133, 136 (McPherson SPJ, Moynihan J agreeing). While a copy of the ordinary statement of claim contained in the papers before this Court does not appear to bear a date, it is common ground that it was sealed and issued on 21 June 2007, being three years and 26 days after the date on which the injury was suffered. The question is whether the cause of action was “discoverable” by the plaintiff within that 26 day period.

Statutory scheme
7 The critical provision in the Limitation Act reads as follows:

“50D Date cause of action is discoverable

(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:

(a) the fact that the injury or death concerned has occurred,

(b) the fact that the injury or death was caused by the fault of the defendant,

(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.”

8 The “person” referred to in s 50D is not necessarily the plaintiff: in relation to a minor who has a capable parent, the person is the parent: s 50F. It is not in dispute that the plaintiff’s mother was a “capable parent” for the purposes of that provision. Accordingly the criteria specified in s 50D are to be assessed by reference to the knowledge of the plaintiff’s mother, and what the plaintiff’s mother ought to have known.

9 After referring to ss 50C and 50D of the Limitation Act, the trial judge said that there was “no doubt that in amending the legislation the Parliament intended to introduce more stringent criteria than previously, and to require the application of a test involving objective reasonableness rather than one of subjective knowledge”: 7 DCLR (NSW) 186 at [7]. Each of those propositions was true in part only. The overall effect of the new provisions with respect to personal injury actions may be described as restrictive of the interests of plaintiffs, because a court is not permitted to extend the relevant limitation period, as it could under Pt 3, Div 3, Subdiv 2: see s 60A. By contrast, the new provisions abandoned the rigidity of the commencement date for the relevant limitation period which used to run from “the date on which the cause of action first accrues”: see s 18A. With respect to personal injury, that would commonly be the date on which the injury occurred. Under s 50D, the commencement of the period is defined by more flexible criteria, which may well not be satisfied until a significant period has elapsed. While conceding that possibility, the State contended that in the present case the facts referred to in s 50D, if not actually known by the plaintiff’s mother, were all facts which ought to have been known before 27 June 2004.

10 Part 2, Div 6 also varied the general provision suspending the limitation period with respect to a person under a disability: see s 52. That was done, relevantly for the present case, by defining a person under a disability to exclude a minor who has a “capable parent”.

Legislative background
11 As noted above, the effect of the amendments to the Limitation Act, introduced by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) was to render flexible the commencement of the limitation period for personal injury claims, but to withdraw the court’s power to extend time, which might otherwise have arisen pursuant to s 60G of the Limitation Act. That discretionary power was limited (and still is in actions to which it applies) in the following way:

“60I Matters to be considered by court

(1) A court may not make an order under section 60G ... unless it is satisfied that:

(a) the plaintiff:

(i) did not know that personal injury had been suffered, or

(ii) was unaware of the nature or extent of personal injury suffered, or

(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and

(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i)–(iii).”

12 Sections 60G and 60I provided a procedure available primarily for causes of action accruing on or after 1 September 1990: s 60F. For causes of action that accrued before 1 September 1990, the court could, broadly speaking, extend time if satisfied that any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action: ss 57A and 58. The relevant definitions for that purpose are contained in s 57B which provides:

“(1) For the purposes of this Subdivision:

...

(b) the material facts relating to a cause of action include the following:

(i) the fact of the occurrence of negligence nuisance or breach of duty on which the cause of action is founded,

(ii) the identity of the person against whom the cause of action lies,

(iii) the fact that the negligence nuisance or breach of duty causes personal injury,

(iv) the nature and extent of the personal injury so caused, and

(v) the extent to which the personal injury is caused by the negligence nuisance or breach of duty,

(c) material facts relating to a cause of action are of a decisive character if, but only if, a reasonable person, knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing:

(i) that an action on the cause of action would (apart from the effect of the expiration of a limitation period) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the cause of action, and

(ii) that the person whose means of knowledge is in question ought, in the person’s own interests, and taking the person’s circumstances into account, to bring an action on the cause of action

(d) appropriate advice, in relation to facts, means the advice of competent persons, qualified in their respective fields to advise on the medical legal and other aspects of the facts, as the case may require,

(e) a fact is not within the means of knowledge of a person at a particular time if, but only if:

(i) the person does not, at that time, know the fact, and

(ii) in so far as the fact is capable of being ascertained by the person, the person has, before that time, taken all reasonable steps to ascertain the fact, and

(f) limitation period means a limitation period fixed by an enactment repealed or omitted by this Act or fixed by or under this Act.”

13 The purpose in referring to these earlier provisions is to note that while there is a degree of commonality of approach, there are also significant variations in the language used and the mechanism adopted. The policies underlying the earlier provisions for extension of time may be illustrated by reference to Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; 154 CLR 234 (in relation to the operation of the predecessor of s 57B(1)) and Dedousis v Water Board [1994] HCA 57; 181 CLR 171 (in relation to the operation of s 60I). But these cases do not provide specific authority with respect to the construction of s 50D. Similarly, it will be conducive to error to extract from earlier authority statements which should properly be read in their legislative context and with a full appreciation of the variations from the legislation now under consideration. Although the Court was pressed with the approach adopted by the UK Court of Appeal in Halford v Brookes [1991] 1 WLR 428 at 443, as to the meaning of “knowledge”, no reference was made, either by the trial judge at [22] or by counsel for the State before this Court to the fact that the Limitation Act 1980 (UK), s 14, and s 50D vary in critical respects.

Onus of proof
14 Although the State had not pleaded to the statement of claim, the plaintiff accepted that by filing a notice of motion seeking to strike out that pleading, it was, in effect, giving notice that it sought to rely upon a limitation defence and that the defence warranted summary dismissal of the proceedings. As the moving party on the motion, the State bore the burden of proving the relevant facts: see Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at 72-74 (Brooking, Tadgell and Hayne JJ); Hawkins v Clayton (1986) 5 NSWLR 109 at 142B (McHugh JA); Cassis v Kalfus [2001] NSWCA 460 at [65] (Hodgson JA, Powell and Heydon JJA agreeing); Segal t/as Segal Litton & Chilton v Fleming [2002] NSWCA 262 at [27] (Hodgson JA, Handley JA and Young CJ in Eq agreeing). To that end, it filed an affidavit of a solicitor which annexed a copy of the letter from the plaintiff’s solicitor to the Police Force dated 1 June 2004 and referred to above. The affidavit referred to no other conduct which had occurred prior to 21 June 2004.

Factual background and submissions
15 There was no dispute in the present case that the plaintiff’s mother knew of the injury, as required in par (a) of s 50D(1). That could be inferred from the fact that the injury occurred in her presence and that she took the plaintiff to hospital. The position with respect to the facts identified in pars (b) and (c) was more equivocal, for a number of reasons.

16 The dispute focussed on whether the plaintiff’s mother was aware, in the relevant period, that the injury to her daughter was “caused by the fault of the defendant” (par (b)) and that the injury was “sufficiently serious to justify the bringing of an action on the cause of action” (par (c)). The State argued that it might properly be inferred that the letter of 1 June was sent either on the mother’s instructions or with her knowledge and identified the Police Service as the party responsible for causing her daughter’s injury. (There was no suggestion that anything turned on the fact that the State was the proper defendant in that event.) The State also argued that the plaintiff’s mother was well aware that the injury was serious, because it had involved hospitalisation of the plaintiff, together with an operation on her fingers and multiple post-operative visits to the hospital.

17 Whether this material could have been sufficient to demonstrate that the plaintiff’s mother had the relevant knowledge in the critical period depended both on the state of satisfaction required by the section and the elements which must constitute the relevant facts required to be known.

18 The plaintiff contended that reference to “fault” in par (b) involved a degree of appreciation of the potential legal liability of the putative defendant. The State, on the other hand, argued that it was sufficient that the plaintiff appreciate that there was a connection between some act or omission of the defendant and the injury and that the relevant act or omission was blameworthy, though not necessarily in a legal sense.

19 With respect to par (c), the plaintiff argued that the seriousness of the injury was not a matter of objective fact, but was an element in an evaluative judgment requiring the seriousness of the injury to be sufficient to justify bringing an action against the defendant. Given the variety of statutory schemes applicable to personal injury claims, and the various limits placed upon the recovery of damages, it was said to be unlikely that par (c) would be capable of assessment by a plaintiff unadvised, except perhaps in quite severe cases. The problems must be exacerbated in respect of injury to a young child.

20 The material before the Court included an assessment (albeit made in 2005) of the degree of “whole person impairment” of the plaintiff, although not a criterion relevant under the Civil Liability Act 2002 (NSW). The plaintiff’s medical expert considered that there was a whole person impairment of 16%, but the State’s expert considered the relevant figure was 1%. This was clearly not a case in which the seriousness of the injury self-evidently justified the bringing of proceedings. Further, the question is whether such a judgment should have been made by the plaintiff’s mother within 26 days of the injury occurring.

21 The plaintiff’s mother did not give evidence, but her solicitor did. He stated in an affidavit (par 4):

“I was informed by [the mother] and believed she would wait for my advice before making any decision about a claim for [her daughter]. I was further informed by [the mother] and believed that she had no experience or knowledge in making personal injury claims and would rely on my advice.”

22 The solicitor noted that he had attended at the Gosford Police Station on 4 June 2004 and taken photographs of the door and its surroundings. He noticed “an angle iron had been installed at the base” of the door. He agreed, in cross-examination, that he inferred that such a device was intended to diminish or eliminate the risk of a further injury of the kind suffered by the plaintiff: Tcpt, 17/06/08, 29(30)-(35). However, he also affirmed that he did not on that day form a belief that the plaintiff had reasonable prospects of success in a claim against anyone or that the occupier was at fault in causing the injuries. Further, he expressly stated that he did not convey to the mother that the plaintiff had reasonable prospects of success in making a claim and that the mother did not convey to him at any time before 14 March 2005 that she believed the plaintiff had such prospects: affidavit, par 7.

23 On 9 June 2004 the solicitor wrote to the mother informing her of the inspection and the photographs, and the fact that he had sent a letter of demand, and suggested that “a period of inactivity” should be allowed whilst the plaintiff’s treatment took place and the insurer carried out an investigation.

24 As the State conceded, it was not possible on the basis of this evidence to infer that the mother knew whether the injury was caused by the fault of the State or whether the injury was sufficiently serious to justify bringing an action, if such knowledge required the application of any degree of professional expertise or assessment.

Construction of s 50D – relevant “facts”
25 A cause of action is “discoverable” for the purposes of s 50C if the relevant person has either actual knowledge or what is sometimes described as “constructive” knowledge, being what he or she “ought to know” of certain facts: s 50D(1), set out at [7] above. Both limbs require giving content to:

(i) the concept of knowledge, and

(ii) each of the identified “facts”.

26 These aspects are interrelated, in the sense that if the facts are properly within the understanding and evaluation of a non-professional, the nature of the person’s knowledge will be different from that which incorporates information or opinion supplied by a professional, on the basis of the exercise of professional expertise. It is therefore convenient to consider first the content of the prescribed facts. In the present case, no issue arose with respect to par (a). The plaintiff’s injury involved a physical wound which was readily apparent to her mother. Although that disposes of par (a) for the purposes of the present case, it should be noted that, in the case of a psychological injury, additional questions will arise. For example, does “injury” refer to compensable injury? If so, must the person have sufficient medical and legal knowledge required to distinguish a “recognised psychiatric illness” from emotional distress as required by the Civil Liability Act, s 33?

27 Some support for a construction which does not import any element of legal knowledge may be found in the repeated use of the word “fact” to describe that which the person knows or ought to know. However, the meaning of that term must be ascertained by reference to the whole of the provision and the possibility that (at least in some circumstances) the relevant fact identified in par (a) (namely, injury or death) is of a different quality to those identified in pars (b) and (c). Furthermore, at least in pars (b) and (c), the singular “fact” is used to describe a composite of inferences or the result of an evaluation. This is a drafting technique which used to be deplored (see Smith v Central Asbestos Co Ltd [1973] AC 518 at 531-532 (Lord Reid)), but now passes with little protest. However, it deprives reliance on use of the word “fact” of much significance in this statutory context.

28 In par (b), the word “fault” is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as “discoverable” for the purposes of s 50C is “the cause of action”. The “fact” contemplated by par (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation.

29 Section 60I(1) permits an extension of time in circumstances where the plaintiff had been “unaware of the connection between the personal injury and the defendant’s act or omission”. This was the language under consideration in Dedousis and applied by this Court (Gleeson CJ, Priestley and Meagher JJA agreeing) in Drayton Coal Pty Ltd v Drain [1995] NSWCA 131. In seeking to identify the relevant acts or omissions, Gleeson CJ referred to “the material particulars as they emerge from a consideration of the statement of claim and the evidence in support of the application”: at 4. Thus, in a case involving industrial deafness, it was not sufficient that the plaintiff be aware that his employer was exposing him to excessive noise, if he were unaware that a safer alternative system of work was available. Referring to Dedousis, his Honour noted that the language of s 60I(1)(a)(iii) was concerned with “ignorance of the existence of acts or omissions rather than legal conclusions”, noting that the “legal complexion which may be put upon a set of facts or circumstances (eg actionable negligence), and the plaintiff’s awareness of that legal complexion is not what matters for the purpose of s 60I(1)”: at 3.

30 The reference to “the fault of the defendant” is linguistically different from “the defendant’s act or omission”, being the language of s 60I, but bears a closer relationship to s 57B, in effect replacing the phrase “negligence, nuisance or breach of duty” by the generic term “fault”. It does not necessarily follow, however, from the use of either the more specific language of negligence, nuisance or breach of duty, or the generic, fault, that any opinion as to the legal complexion of the conduct is required: see, eg, Smith v Central Asbestos at 543 (Lord Pearson), dealing with a predecessor to s 57B, namely s 7(3) of the Limitation Act 1963 (UK). Again, however, care must be taken in treating concepts used with respect to circumstances permitting an order extending time as governing the correct approach to a provision delaying the commencement of the limitation period.

31 In Spandideas v Vellar [2008] VSC 198, Kaye J discussed ss 27D and 27F of the Limitation of Actions Act 1958 (Vic), which are in materially the same terms as ss 50C and 50D of the New South Wales Act. The case was concerned with the equivalent of par (b), the plaintiff claiming that she did not know, prior to the relevant time, that a medical procedure had caused her injury. On the facts, the plaintiff was aware that her injury proceeded from some act or omission on the part of the defendant, but not, at the relevant time, that such act or omission involved culpability on the part of the defendant.

32 Kaye J accepted the plaintiff’s construction, namely that use of the term “fault” required the attribution of a degree of culpability or blame on behalf of the person who caused the damage: at [32]. His Honour noted that the use elsewhere of the phrase “act or omission” had, in the past, been construed as meaning “negligent act or omission”, but that such a construction had been overturned by the Court of Appeal in Mazzeo v Caleandro Guastalegname & Co [2000] VSCA 230; 3 VR 172: Spandideas at [34]. Accepting that some culpability or blame must attach to the act or omission for it to constitute a “fault”, his Honour continued at [35]:

“However, I do not consider that s 27F(1)(b) requires that the plaintiff form a legal judgment as to the ‘fault’ of a defendant in the tortious sense of the word. Rather, I consider that Parliament intended that the period of limitation is to commence when the plaintiff knew (or ought to have known), inter alia, of the fact that the death or personal injury, the subject of the claim, was caused by an act of a person, which should not have been carried out, or which should have been done differently, or by an omission by another person to carry out an act, which should have been done.”

33 While it appears not to have been necessary for his Honour’s conclusion, he expressed the view that this approach was consistent with the “value judgment” required under the equivalent of par (c): at [36]. Accepting that both provisions required a “normative assessment by the plaintiff”, his Honour did not express a view as to whether legal considerations were brought into play by par (c).

34 Although a carefully reasoned judgment of the Supreme Court of Victoria, it would not necessarily entail the consequence that this Court should adopt the same construction. It is noteworthy that Kaye J drew particular assistance from the history of legislative enactments and judicial pronouncements with respect to the Limitation of Actions Act (Vic). He was also invited to draw conclusions by reference to the use of the term “fault” in the Wrongs Act 1958 (Vic).

35 The Court of Appeal dismissed an application for leave to appeal on the basis that Kaye J had expressed the view that, even if the proceedings had been commenced out of time, he would have granted an extension of time (a power not available under the New South Wales legislation): Vellar v Spandideas [2008] VSCA 138 (Dodds-Streeton JA, Pagone AJA agreeing). No conclusion was reached as to the correctness of the construction adopted by his Honour in relation to the statutory provisions: at [65].

36 The Court was provided with no direct assistance in respect of the adoption of the term “fault” in the New South Wales Act. In the Review of the Law of Negligence – Final Report (2002) (“the Negligence Report”), which triggered the amendments, the particular element was identified by reference to the date on which the plaintiff knew or ought to have known that the injury “was attributable to negligent conduct of the defendant”: at par 6.19. This gives credence to the view that the term “fault” was used generically to cover a possible range of causes of action, an approach consistent with the intention of the Negligence Report that the precise nature of the cause of action should not be determinative: at par 6.14.

37 Although the statutory test is expressed in terms of what the person “knows or ought to know” of the identified facts, the objective element was clearly and expressly identified in the Negligence Report as the primary aspect of discoverability: at par 6.28. As will be noted below, s 50D(2) identifies when a person ought to know a fact on an assumption that the person had “taken all reasonable steps before that time to ascertain the fact”. Taking all reasonable steps must, in appropriate circumstances, include obtaining medical and legal advice and information. That assumption, and the significance given to it in the Negligence Report, remove any curiosity which might otherwise inhere in the conclusion that the concept of “fault” was to be ascertained by reference to legal concepts.

38 In Dedousis at 181-182, the joint judgment stated:

“It is true that s 60I(1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. However, if a plaintiff alleges that his or her employer has failed to provide him or her with a safe system of work and is able to establish that he or she was not aware that there was a safer alternative system, then the proper conclusion is that the plaintiff was ‘unaware of the connection between the personal injury and the defendant’s act or omission’ within the meaning of s 60I(1)(a)(iii). On that hypothesis, the relevant act or omission is the employer’s failure to provide the safer alternative system or to take suitable precautions.”

39 The linguistic difference between s 60I(1) and s 50D(1) cannot be disregarded. The test in s 60I is broader in two respects, and therefore easier for a defendant to establish. First, the relationship between injury and act or omission is said in s 60I to be one of “connection”, whereas in s 50D it is one of causation. Secondly, the phrase “act or omission” is replaced by “fault”. On the other hand, in a practical sense, the latter distinction may be more apparent than real. Once it is accepted that the act or omission of which the person is to be aware under s 60I is the existence of an alternative system or precaution, apparently being one reasonably available, the point of distinction is diminished. As explained in Drayton, there is no need for the plaintiff to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise. It is the key factors necessary to establish legal liability which must be known. In the context of s 50D, to speak in general terms of moral blameworthiness is inapt: it is consistent neither with the context of s 50D, which deals with fault in relation to a cause of action, nor with the underlying approach in Dedousis and Drayton.

40 The exercise undertaken by the State in the present case fell far short of demonstrating that the plaintiff’s mother knew, at the relevant time, of any steps which could and should reasonably have been taken by the occupier of the premises to render the sliding door safe. The primary particular of negligence on the statement of claim was a failure to provide “a protective guard or covering along the area of operation of the ... sliding glass doors”. Until the plaintiff’s mother was aware (or ought to have been aware) of the availability and reasonable practicability of installation of such a device, she could not be said to be aware that her daughter’s injury was caused by a failure on the part of the State to take reasonable care for her safety. These are the terms in which the relevant test under s 50D(1)(b) should be formulated.

41 Although a legal evaluative judgment appears to be required by par (b), that element is even more explicit in par (c). Thus the injury must not only be understood to be serious, but “sufficiently serious to justify” a course of action. Further, that course is “the bringing of an action on the cause of action”, an objective which would appear to require the exercise of both legal and medical expertise. Similar language is found in the identification of material facts as being “of a decisive character” for the purposes of s 57B(1)(c), set out at [12] above. In that provision, the test is stated objectively, by reference to the opinion of a reasonable person, but also by asking whether one “knowing those facts and having taken the appropriate advice on those facts” would hold the identified opinion.

42 The construction of par (c) which would involve the person obtaining medical and legal advice gains support from the fact that a number of statutory regimes contain floors or caps on recovery of damages, or both: see, eg, Civil Liability Act, s 16. No proper view could be formed about the justification for bringing an action, absent information of that kind.

43 It is also appropriate that s 50D be read in a broader context. Thus, a claim for damages for personal injury, brought by a solicitor, must be accompanied by certification in accordance with the Legal Profession Act 2004 (NSW), s 347. The statement of claim in the present case bore such a certification which read:

“I certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success.”

44 A further element of the broader legal context is that, for a person such as the plaintiff under legal incapacity, proceedings may not be commenced except by a tutor; nor may the tutor commence proceedings except by a solicitor: UCPR, r 7.14. To the extent that par (c) requires an assessment of the seriousness of injury sufficient to justify the bringing of proceedings, coherence with the broader statutory framework requires that the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made.

Section 50D – “know”
45 This last line of reasoning has relevance also to the nature of the knowledge which the person is required to have, for the limitation period to commence to run. In common with extension provisions, s 50D refers, somewhat simplistically, to whether the person “knows” (or ought to “know”) the identified facts. It is rare that facts will be known in any absolute sense: rather, as a practical matter, the person will have a belief that certain matters can be established, usually on the balance of probabilities, which is sufficient for the purposes of legal proceedings. Such a belief may be held on firm grounds or on shaky grounds. The belief is likely to involve an assessment of various matters, none of which can be readily quantified. Questions involving causation, fault and assessment of damages are all susceptible to these kinds of uncertainty. Nevertheless, the chapeau of the sub-section refers to knowledge of identified facts, and not to an assessment of prospects of success in the prospective proceedings. Further, despite the inability to bring proceedings without a solicitor in a position to certify in accordance with the requirements of the Legal Profession Act, it is the knowledge of the plaintiff’s mother which is the focus of the statutory test.

46 It follows from this analysis, in accordance with the concession made by the State, that the plaintiff’s mother did not at any stage within the relevant period have actual knowledge sufficient to satisfy par (c) or, in all probability, par (b). The approach adopted above with respect to par (c) is largely consistent with that adopted by Goldring DCJ in Rawle v Southstate Industrial Supplies Pty Ltd [2008] NSWDC 70; 7 DCLR (NSW) 134 referred to by the trial judge at [17]. Judge Goldring referred to s 50D in the following terms:

“[25] ... The question of whether or not the bringing of action is justified is not simply a matter of looking at the seriousness of the injury, but also of looking at that injury in the light of the statutory requirements for claiming compensation, and that requires some understanding of the law.

[26] In order to know whether the injury is sufficiently serious to justify the bringing of action, a person must know not only that the injury is serious, but also, in approximate terms, whether that injury is sufficient to bring the person over any of the statutory thresholds that now exist.”

Approach of trial judge
47 In the case under appeal, his Honour concluded with respect to par (c) at [25]:

“Similarly, in my view, in respect of the seriousness of an injury it is not necessary that the prospective plaintiff know that it is sufficient to satisfy the threshold tests discussed by Judge McGrowdie and Judge Goldring in their judgments, nor that there be a determination of the cost benefit of bringing the proceedings, before time begins to run. All that is required is an injury of sufficient seriousness to raise the prospect of a cause of action. The prospective plaintiff still has three years to investigate the injury and determine whether it is sufficient to justify the commencement of proceedings.”

48 His Honour concluded that the plaintiff’s mother had the relevant knowledge when she consulted her solicitor on 1 June 2004. She knew of the injuries to her daughter, she knew that the Police Department occupied the premises where the injuries occurred and that it was responsible for those premises and she knew that the injury was “so serious in fact that the child required to go to hospital”: at [27]. These facts were sufficient, his Honour held, “to put her on notice of the prospect of an action”. His Honour considered this was “self-evident” because she consulted a solicitor within a matter of days.

49 In reaching this conclusion, his Honour dealt comprehensively with a line of authority in the District Court, noting that a variety of approaches had been adopted. In particular he noted that the approach adopted in Rawle was similar to that adopted by McGrowdie DCJ in Ozturk v NSW Department of Housing (unrep, 24 August 2007) – Baker-Morrison at [17]. After referring to contrary views, his Honour concluded that the approach adopted in Rawle was in error.

50 In taking that view, his Honour placed weight on a statement of Kaye J in Caven v Women’s and Children’s Health [2007] VSC 7; 15 VR 447 at [56]:

“The [Limitation of Actions Act] does not define the term ‘fault’. In some other contexts, such as s 5(1A), it uses a different phrase, namely ‘act or omission’. It is arguable that the use of the different term ‘fault’ evinces a legislative intention that the plaintiff must know, or ought to know, not simply of the existence of the act or omission which caused the injury, but also that the injury was caused by a legal wrong. However, it would be curious if the legislation is intended to work in such a way, so as to postpone the application of the period of limitation until the plaintiff knew of his or her legal rights.”

51 This was an uncertain basis upon which to resolve the proper construction of the New South Wales statute for two reasons. First, in the next sentence, Kaye J stated that “[t]his matter was not argued before me”; clearly his views were tentative rather than definitive. Secondly, the curiosity might be thought greater in circumstances where, as in Victoria, there is a power to extend limitation periods (s 27K) in accordance with prescribed criteria (s 27L).

52 Since the judgment in the District Court in the present case, Kaye J revisited the Victorian provision in Spandideas, discussed above.

53 The trial judge also drew support from a passage in the judgment of Lord Donaldson of Lymington MR in Halford v Brookes. That passage, set out by his Honour at [22], involved Lord Donaldson’s explanation of the term “knowledge” in the UK provision (at 443):

“The word has to be construed in the context of the purpose of the section, which is to determine a period of time within which a plaintiff can be required to start any proceedings. In this context ‘knowledge’ clearly does not mean ‘know for certain and beyond a possibility of contradiction’. It does, however, mean ‘know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal or other advice and collecting evidence.’”

54 This passage appears to have been the genesis of his Honour’s conclusion that the plaintiff’s mother knew facts sufficient “to put her on notice of the prospect of an action”.

55 The plaintiff in Halford v Brookes brought civil proceedings with respect to the murder of her 16-year-old daughter. At the relevant time, she knew that one of two persons was guilty of the crime and, indeed, sought legal advice as to the prosecution of one of the defendants. What she did not know at that time was that she had a civil claim for damages as administrator of her daughter’s estate. Importantly, the limitation period, contained in s 14 of the Limitation Act 1980 (UK), required that she know the injury was “attributable in whole or in part to the act or omission which is alleged to constitute ... breach of duty”, but also provided that “knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant”. Nevertheless, ignorance of legal rights was a relevant consideration in granting an extension of time.

56 It may be seen that the statutory scheme considered in Halford was significantly different from s 50D and its statutory context. In particular, the requisite state of knowledge under par (c) requires a judgment concerning “the bringing of an action on the cause of action”, and not the “prospect” of such a proceeding. The error derives from the inappropriate importation of authorities with respect to different provisions.

The objective test – “ought to know”
57 The next question was whether the plaintiff’s mother ought to have known each of the facts identified in sub-s 50D(1). The answer to that question must depend upon the effect of sub-s (2). It purports to provide a definition of what is covered by the phrase “ought to know”. That description is premised on an assumption that the person had not taken all reasonable steps to ascertain the facts, or a particular fact, requiring an assessment to be made of what would have been ascertained had such steps been taken.

58 In most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff (or the parent of a plaintiff) to satisfy the element of taking “all reasonable steps”. (In some circumstances there may no doubt be a question as to whether the plaintiff’s instructions were adequate or whether other limitations prevented the solicitor from taking proper steps in a timely fashion: no such question arose in the present case.)

59 The phrase “ought to have known” can mean either that the person should have inquired as to a fact (the active sense) or that he or she should have been told of the fact (the passive sense). In this context, ‘should’ connotes a culpable omission, either by the person who should have known, or by the other person who should have supplied advice or information. If the limitation period had been intended to commence, not because of a failure on the part of the putative plaintiff to take reasonable steps, but because of the failure of another person, that could and should have been made clear. Rather, the expression “ought to know” was identified by reference only to what the putative plaintiff “would” have found out, if he or she had taken all reasonable steps. That language is apt to engage the active sense of the expression only. Further, the word “would” (rather than “should”) is inconsistent with any expectation of an inquiry into the conduct of the potential source of information or advice.

60 It was not suggested that, in the 26 day period after the accident, the plaintiff’s mother should reasonably have taken any step which she did not take. Accordingly, unless the plaintiff’s mother in fact had the relevant knowledge, the defence must fail.

61 It may be added that, even if an inquiry into whether the solicitor acted reasonably were called for, the State neither called evidence to show that he had failed, nor cross-examined him to suggest that he had failed, to take particular steps which he should reasonably have taken in order to supply the mother with appropriate advice or information.

Conclusions
62 The District Court was in error in acceding to the application by the State. Accordingly the following orders are required:

(1) Grant leave to appeal.

(2) Set aside the judgment and orders of the District Court made on 27 June 2008 and, in lieu thereof, order that:

(a) the defendant’s motion be dismissed, and

(b) the defendant pay the plaintiff’s costs of the motion.

(3) Order that the respondent pay the appellant’s costs in this Court.

63 MACFARLAN JA: I agree with Basten JA.

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LAST UPDATED:
4 March 2009