Australia: "Limitation Of Actions - Date On Which Cause Of Action ´Discoverable By Plaintiff´ - s 50D Limitation Act"

Last Updated: 19 March 2009
Article by Olivia Dinkha

Baker-Morrison v State Of New South Wales [2009] NSWCA 35

In Brief

  • In the first Court of Appeal decision regarding the construction of ss 50C and 50D of the Limitation Act 1969, the Court had to determine when a cause of action was discoverable by the plaintiff for the purpose of determining when the limitation period began to run.

Background Circumstances

  • On 26 May 2004, the plaintiff, then two years old, injured the fingers of her right hand when they were caught by automatic sliding doors at the Gosford Police Station.
  • On 1 June 2004 the plaintiff's mother consulted a solicitor in respect of her daughter's accident and a letter of demand was forwarded to the Gosford Police Station. An inspection of the door was carried out by the plaintiff's solicitor on 4 June 2004.
  • On 21 June 2007, three years and 26 days after the date of injury, the plaintiff (by her tutor) commenced proceedings against the State of New South Wales in the District Court of NSW.
  • On 27 November 2007, the defendant filed a notice of motion which sought to strike out the claim on the basis that it was statute barred pursuant to s 50C of the Limitation Act 1969.
  • Section 50C of the Limitation Act provides that:
    1. An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:

      1. the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff;
      2. the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.
  • Section 50D of the Limitation Act provides as follows:
    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:

      1. the fact that the injury or death concerned has occurred,
      2. the fact that the injury or death was caused by the fault of the defendant,
      3. 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.

District Court Proceedings

  • Johnstone DCJ stated that the amendments to the Limitation Act introduced a test involving objective reasonableness rather than one of subjective knowledge, and that it was therefore the intention of Parliament that more stringent criteria be introduced.
  • Johnstone DCJ held that all that is required to satisfy s 50D(1)(c) is an injury of sufficient seriousness to raise the prospect of a cause of action because a prospective plaintiff still has three years in which to investigate the injury and determine whether it is sufficient to justify the commencement of proceedings.
  • It was held that the plaintiff's mother had the relevant knowledge of the facts contained in s 50D(1) when she consulted with the solicitor on 1 June 2004. Johnstone DCJ held that she knew of the injuries to her daughter and that the Police Department, as occupier, was responsible for the premises where the injury occurred. His Honour held that these facts were sufficient to put her on notice of the prospect of an action.
  • His Honour considered that in the context of s 50D knowledge means to "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".
  • Accordingly the plaintiff's statement of claim was struck out.

Court Of Appeal Proceedings

  • On appeal the Court had to determine 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 she was aware that the injury was sufficiently serious to justify the commencement of a cause of action.
  • The defendant submitted that the plaintiff's mother knew that the Police Service was responsible for her daughter's injury by reason of the letter of demand which was forwarded to Gosford Police on 1 June 2004, and that she was aware that the injury was sufficiently serious for the purpose of s 50D(1)(c) because her daughter was required to undergo an operation and a period of hospitalisation as a result of it.
  • Basten JA, who delivered the unanimous judgment, held the content of the word "fact" in s 50D(1)(b) and (c) must be ascertained by reference to the whole of s 50D. His Honour held that "fact" describes a composite of inferences or the result of an evaluation and that it refers to the key factors necessary to establish legal liability.
  • Basten JA held that the term "fault" in s 50D(1)(b) was intended in the generic sense of the word to cover a possible range of causes of action, and that the precise cause of action need not be determinative. He held that the word was not intended to mean moral blameworthiness but required the knowledge of key factors necessary to establish legal liability.
  • Basten JA held that the defendant did not establish that the plaintiff's mother knew, at the relevant time, that the State could have taken any steps to have avoided the plaintiff's injury through the installation of a protective guard. His Honour held that until the plaintiff's mother was aware of the availability of such a device it could not be said she was aware that her daughter's injury was caused by the fault of the defendant. It was held that, s 50D(1)(b) requires a legal evaluative judgment.
  • With respect to the seriousness of the injury, the plaintiff argued that this was not a matter of objective fact but an element in evaluative judgment requiring the seriousness of the injury to be sufficient to justify bringing an action against the defendant. The plaintiff further submitted that given the variety of statutory schemes and threshold limits placed upon the recovery of damages, s 50D(1)(c) is not capable of assessment without legal and medical advice.
  • Basten JA held that the fact that the injury needs to be "sufficiently serious" to justify bringing a cause of action requires the exercise of both legal and medical expertise. His Honour held that It requires a person to obtain medical and legal advice particularly when viewed in light of the various statutory regimes, such as the Civil Liability Act which introduces caps and thresholds in respect of the recovery of damages.
  • The defendant conceded that it was not possible on the basis of the evidence to infer that the plaintiff's mother knew that the injury was caused by the fault of the State or whether the injury was sufficiently serious to justify bringing an action because such knowledge required the application of a degree of professional expertise or assessment.
  • Accordingly Basten JA held that the plaintiff's mother did not at any stage within the relevant period have actual knowledge to satisfy s 50D(1)(c).
  • Having found that the plaintiff's mother did not have actual knowledge, the Court then considered whether the plaintiff's mother had constructive knowledge, that is, ought to have known of the facts identified in s 50D(1). His Honour considered that the phrase "ought to have known" contained in s 50D(2) could either mean that the person should have inquired as to a fact or that he or she should have been told of a fact. Basten JA held that the former approach was intended and that during the initial 26 day period after the accident that the plaintiff's mother took all reasonable steps, such as consulting a solicitor, and was therefore not in a position to have constructive knowledge of the existence of the cause of action.


  • For the purposes of s 50C a cause of action is discoverable if a plaintiff has either actual knowledge or constructive knowledge, being what he or she ought to know, of the facts outlined in s 50D(1). In this way, an objective test has been introduced.
  • When s 50D(1)(b) and (c) is read in line with broader statutory framework such as s 16 of the Civil Liability Act and s 347 of the Legal Profession Act, the section demands that a plaintiff has available to him or her relevant legal and medical information to allow an informed professional judgment to be made. Accordingly, legal and medical knowledge are required to satisfy s 50D(1)(b) and (c).
  • In most circumstances, the act 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" to ascertain the facts identified in s 50D(1).
  • Under Pt 3, Div 3, Sub Div 2 of the Limitations Act 1969, a court was permitted to extend a limitation period. By contrast, the new provisions provide no such relief for plaintiffs. However, this is not necessarily all bad news for plaintiffs. The rigid approach of a limitation period running from date on which the cause of action accrues has been replaced with new criteria being when a cause of action was discoverable by the plaintiff. As Basten JA noted, this is a "more flexible criteria, which may well not be satisfied until a significant period has elapsed".
  • From a procedural point of view, as the plaintiff now has no relief to apply for a limitation period to be extended, aside from relying on a limitation defence a defendant should file a motion seeking to strike out a pleading if it has not been commenced within the relevant limitation period. The court confirmed that the onus rests with the moving party and thus the defendant bore the burden of proving the relevant facts in this case. With the benefit of hindsight a more rigid cross examination of the plaintiff's solicitor may have resulted in the defendant's motion succeeding. It may also have been prudent to request the plaintiff be available for cross examination.
  • The Court of Appeal has given a broad interpretation to s 50D of the Limitation Act which is good news for plaintiffs and bad news for defendants and their insurers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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