Australia: Commencing Personal Injury Proceedings: Is It Too Late?

If the reasoning adopted by the New South Wales Court of Appeal in a recent appeal is to be used as a guide, then the limitation period in which a personal injury plaintiff is required to commence proceedings may not begin to run until after expert reports are obtained, even if this is in excess of three years from the date the cause of action arose.

This judgement is believed to be the first Court of Appeal decision and indeed the first decision delivered by a bench comprising more than one judge in respect of the interpretation of section 50D of the Limitation Act 1969 (NSW) (the Act), since its commencement on 6 December 2002.

A minor sustained injuries when her fingers were caught in the automatic sliding doors at the Gosford Police Station on 26 May 2004. Of relevance, the minor (by and with her tutor – the plaintiff) consulted solicitors on 1 June 2004, who wrote to the Gosford Police seeking a view of the sliding doors and its surroundings. The view occurred on 4 June 2004. Proceedings in the District Court of New South Wales were subsequently commenced on 29 June 2007, some 3 years and 26 days after the date of injury, against the State of New South Wales. The State filed a motion to strike out the plaintiff's claim on the basis that it was statute-barred pursuant to section 50C of the Act. This motion was upheld by the primary judge.

Section 50C(1)(a) of the Act provides that proceedings for personal injury damages must be commenced within 3 years from the date the cause of action was "discoverable". There are equivalent limitation statutes in other States introduced as part of the national push for tort law reform in 2002 and 2003.

Section 50D of the Act defines when a cause of action is 'discoverable' and provides that:

  1. ... 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 ... was caused by the fault of the defendant,
    2. 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.

The plaintiff appealed the decision of the primary judge and the issue for determination for the Court of Appeal was when the plaintiff became aware of the matters referred to in section 50D (1) (b) and (c).

The Court of Appeal unanimously held (Basten JA giving the leading judgement) that:

  1. Reference to 'the fact' in subsection 1 (b) requires a determination on causation between the injury and the fault of the defendant. However, this does not refer to legal liability, nor does it require a legal opinion. There is no need for a plaintiff to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise. What must be known are the key factors necessary to establish legal liability.

    In the present case, the State bore the onus of proof (as it was the party moving the motion in the primary court) and it did not establish that the plaintiff knew or ought to have known that alternative measures could have been taken by the State to render the sliding doors safe. Until the plaintiff was aware (or ought to have been aware) of these alternative measures, she could not be said to have known of the fact that the injury was caused by the fault of the State.
  2. Subsection (c) requires that the plaintiff have available all relevant legal and medical information to allow an informed judgement to be made. The word 'know' should not be taken in the absolute sense, rather, it refers to the plaintiff's belief that certain matters can be established for the purposes of legal proceedings. This includes considering the statutory framework and thresholds for an award of damages but does not refer to an assessment of the prospects of success.

    In this instance, medical evidence relating to the extent of the plaintiff's injuries was not available until March 2005.
  3. The reasonable steps referred to in subsection 3(2) must, in appropriate circumstances, include obtaining medical and legal advice and information. It refers to matters that the plaintiff would have found out if the plaintiff took active steps to make the enquiries, but does not refer to matters which the plaintiff would have known but for another person's failure to inform the plaintiff.

The Court noted that the State did not make enquiries into whether the solicitor acted reasonably to take steps to supply the plaintiff with appropriate information/advice.

To save time and costs and before preparing any strike out application on the basis of breach of the Act, a defendant should review the chronology of events from the date the cause of action arose, to the date of the filing of the originating process, as it is likely to be insufficient that the proceedings were simply commenced in excess of 3 years from the date of the accident.

This of course does not prevent a defendant from relying upon the limitation issue in its defence, nor does this prevent a defendant from requesting particulars or making an application for interrogatories in respect of the limitation issue (subject to privilege).

Baker-Morrison by her tutor Alicia Baker v State of New South Wales [2009] NSWCA 35

Please Note: The views expressed by our contributors are not necessarily those of CJ Connect, Contract Journal or Mondaq Ltd.

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